[2022] KEELC 3627 (KLR)
The court found that although the respondent had sought leave to appeal out of time and was granted such leave by consent, as at the time of the ruling, no notice of appeal or stay order had been brought to the court's attention. The absence of a stay of execution meant that the decree remained enforceable. The...
Source-derived case information.
- Citation
- [2022] KEELC 3627 (KLR)
- Parties
- Appellant: Julius Kailikia Laaru; Respondent: Peter Kaigera Laaru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 32 of 2019
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Execution of Decree
- Outcome
- Application allowed with costs to the applicant.
- Judges
- CK Nzili
- Legal Topics
- Execution of Decree, Transfer of Land, Stay of Execution, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kailikia Laaru
Appellant
Peter Kaigera Laaru
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Execution of Decree
Legal Issues
- 1 Whether the Deputy Registrar should be authorized to sign and execute subdivision and transfer documents in favour of the respondent in execution of the decree.
- 2 Whether the existence of a pending appeal or application for leave to appeal out of time justifies refusal to enforce the decree.
- 3 Whether there is any stay of execution preventing enforcement of the decree.
Ratio Decidendi
The court found that although the respondent had sought leave to appeal out of time and was granted such leave by consent, as at the time of the ruling, no notice of appeal or stay order had been brought to the court's attention. The absence of a stay of execution meant that the decree remained enforceable. The respondent's failure to effect the transfer as ordered by the decree since 2016, and the lack of any legal impediment to execution, justified granting the application. The court therefore authorized the Deputy Registrar to sign and execute all necessary subdivision and transfer documents in favour of the applicant to give effect to the decree, with costs awarded to the applicant.
Court Disposition
Application allowed with costs to the applicant.
Orders
- The Deputy Registrar is authorized and empowered to sign and execute all necessary subdivision and transfer documents in favour of the applicant in execution of the decree.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
Laaru v Laaru (Environment and Land Appeal 32 of 2019) [2022] KEELC 3627 (KLR) (11 May 2022) (Ruling)
Neutral citation: [2022] KEELC 3627 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal 32 of 2019
CK Nzili, J
May 11, 2022
Between
Julius Kailikia Laaru
Appellant
and
Peter Kaigera Laaru
Respondent
Ruling
1. By an application dated July 2, 2020 the court is asked to authorize and or empower the Deputy Registrar to sign and execute all the necessary subdivision and transfer documents in favour of the respondent in execution of the decree herein. The application is supported by a sworn affidavit by Julius Kailikia Laaru on the even date. The grounds given are that the court decreed to the applicant ten acres and ordered that the respondent do effect the transfers but he has totally refused to implement the decree since 2016. Therefore for the end of justice to be met the applicant urges the court to allow the application since there exists no stay of execution of the decree since 2016.
2. The application was opposed through a replying affidavit sworn on July 21, 2020 by Peter Kaigera Laaru on the grounds that there was a pending appeal and hence it would only be fair and just if the appeal was heard and determined before the decree is enforced, otherwise the appeal would be rendered nugatory.
3. Further the respondent averred that there was need to preserve the property and urged the court to disallow the application.
4. The court record shows that following this application the respondent filed a notice of motion dated July 19, 2020 seeking for leave to prefer an appeal out of time.
5. By a further replying affidavit sworn on October 7, 2020 the respondent deposed that the application seeking leave to appeal out of time had gone missing hence leading to the filing of another application which he now wished to bring to the attention of the court.
6. On November 10, 2021 the respondent by consent of parties was allowed to file an appeal out of time within 7 days from that date.
7. As at the writing of this ruling the said notice of appeal has not been brought to the attention of the court. Similarly the respondent has not brought before this court any stay order against the decree herein. Consequently, I am inclined to allow the application with costs to the applicant.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURTTHIS 11TH DAY OF MAY, 2022In presence of:ApplicantHON C K NZILIELC JUDGE