[2023] KEELC 22092 (KLR)
The court found that the applicant had complied with all conditions for the grant of stay of execution, namely depositing the required sum and surrendering the original title deed. Despite this, the respondent improperly obtained vacant possession from the trial court, which acted on the mistaken belief that the...
Source-derived case information.
- Citation
- [2023] KEELC 22092 (KLR)
- Parties
- Appellant: Patrick Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea); Respondent: Stephen Murithi alias M’inoti Kiautha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E021 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Applications for Enforcement of Stay and Challenge to Execution
- Outcome
- Applications dismissed as superfluous; stay orders remain in force; execution process declared illegal; status quo maintained.
- Judges
- CK Nzili
- Legal Topics
- Stay of Execution, Eviction Procedure, Land Registration, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea)
Appellant
Stephen Murithi alias M’inoti Kiautha
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Applications for Enforcement of Stay and Challenge to Execution
Legal Issues
- 1 Whether the execution process initiated by the decree-holder was lawful in light of subsisting stay orders.
- 2 Whether the trial court erred in granting vacant possession despite compliance with stay conditions.
- 3 Whether the applicant is entitled to further relief or orders beyond the subsisting stay.
Ratio Decidendi
The court found that the applicant had complied with all conditions for the grant of stay of execution, namely depositing the required sum and surrendering the original title deed. Despite this, the respondent improperly obtained vacant possession from the trial court, which acted on the mistaken belief that the stay had lapsed. The respondent did not challenge the applicant's compliance or seek review of the stay orders. The court held that the execution process and any resulting changes to the land register were illegal and null, as the stay orders remained in force. The applications before the court were deemed superfluous, as the status quo as of 31.5.2023 was to be maintained, and...
Court Disposition
Applications dismissed as superfluous; stay orders remain in force; execution process declared illegal; status quo maintained.
Orders
- The execution process initiated by the decree-holder is declared illegal and any entry or changes to the subject land are nullified.
- The stay orders issued on 31.5.2023 remain in force.
Full Case Text
Judgment text and source record
24 paragraphs
Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea) v Murithi alias M’inoti Kiautha (Environment and Land Appeal E021 of 2023) [2023] KEELC 22092 (KLR) (11 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22092 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal E021 of 2023
CK Nzili, J
December 11, 2023
Between
Patrick Kimene
Appellant
Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea
and
Stephen Murithi alias M’inoti Kiautha
Respondent
Ruling
1. On 31. 5.2023, this court stayed the execution of the decree issued pursuant to the judgment dated 1. 3.2023, whose effect was to replace the names of the appellant in the register for LR No. Nyaki/Kithoka/334.
2. The conditions for stay were to deposit Kshs.50,000/= and surrender the original title deed before the Deputy Registrar of this court.
3. The two conditions were met as per Receipt No. DAK – 0002355 and a letter dated 8. 6.2023. While aware of this the decree-holder moved the trial court by an application dated 11. 9.2023, to seek for vacant possession. Vide a ruling dated 22. 11. 2021, the trial court allowed the application on the basis that the stay orders had elapsed by effluxion of time. An eviction process must abide by the law on eviction. See Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 others Petition 3 of 2018 (2021) KESC 34 (KLR) (11th January, 2021) (Judgment).
4. The ruling must have been made out of an error apparent on the face of the record. The decree-holder never applied for review on setting aside of the stay orders for non-compliance.
5. Strangely the decree holder has not refuted the averments on oath in the supporting affidavits sworn by Patrick Kimene Nabea in support of the applications dated 24. 11. 2023 and 1. 12. 2023.
6. Court orders are not made in vain and a party who takes advantage of court processes and unjustly enriches himself without following the law has to face the consequences. See Republic vs County Chief Officer Finance and Economic Planning Nairobi City County Exparte David Mugo (2018) eKLR and Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri (2014) eKLR.
7. The up short is I find the execution process initiated by the decree-holder was illegal. Any entry into and changes to the subject land remain nullities. The applicant is at liberty to seek damage for the loss or damage occasioned.
8. The stay orders remain in force and therefore the court does not require to issue any further orders. The up short is I find the two applications superfluous otherwise the applicant should have applied for contempt of court. The status quo as of 31. 5.2023 remain in place.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 11TH DAY OF DECEMBER 2023In presence ofC.A Kananu/MukamiMr. Igweta for the applicantAppellantHON. CK NZILIJUDGE