[2019] KEELC 3030 (KLR)
The court declined to adopt the consent order as presented by the parties because it failed to comply with Order 42 Rule 6(2)(b) of the Civil Procedure Rules, which requires provision of security for the due performance of the decree. The court substituted the consent with its own orders, requiring the appellant to...
Source-derived case information.
- Citation
- [2019] KEELC 3030 (KLR)
- Parties
- Plaintiff: Loise Muthoni Njagi; Defendant: Margaret Ciambaka Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 09 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of security; substituted consent order issued.
- Legal Topics
- Stay of Execution, Security for Costs, Adverse Possession, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loise Muthoni Njagi
Plaintiff
Margaret Ciambaka Mugambi
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the consent order as presented by the parties complies with Order 42 Rule 6(2)(b) of the Civil Procedure Rules.
- 2 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court declined to adopt the consent order as presented by the parties because it failed to comply with Order 42 Rule 6(2)(b) of the Civil Procedure Rules, which requires provision of security for the due performance of the decree. The court substituted the consent with its own orders, requiring the appellant to deposit Kshs. 1,000,000 as security within 21 days as a condition for the stay of execution. The stay of execution of the judgment and consequential orders was granted pending the hearing and determination of the intended appeal, subject to compliance with the security requirement. The intended appeal must be filed within 30 days, failing which the stay would lapse. The court...
Court Disposition
Stay of execution granted on condition of security; substituted consent order issued.
Orders
- The appellant is required to deposit with court as security the sum of Kshs. 1,000,000 within twenty one days of the ruling, failing which the stay of execution will lapse.
- Subject to provision of security, stay of execution of the judgment delivered on 22nd May, 2019 and any consequential orders is granted pending hearing and determination of the intended appeal.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 09 OF 2018(OS)
IN THE MATTER OF THE LIMITATION OF ACTIONS ACT, CAP 22, SECTION 7, 37 & 38
AND
IN THE MATTER OF LAND REGISTRATION ACT (NO. 3 OF 2012) AND LAND ACT (NO. 6 OF 2012)
AND
IN THE MATTER OF AN APPLICATION BY LOISE MUTHONI NJAGI
UNDERTHE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA THAT SHE BE
REGISTEREDAS PROPRIETOR OF PART MEASURING APPROXIMATELY 4. 75 ACRES
OR THEREABOUT OF LAND PARCEL NO. MAGUMONI/THUITA/1318
AND
FOR A DECLARATION TO THE LAND REGISTRAR UNDER SECTION 24 AND 28 OF
LAND OF LAND REGISTRATION ACT (NO. 3 OF 2012) TO REGISTER THEAPPLICANT
AS THE PROPRIETOR OF PAT MEASURING APPROXIMATELY 4. 75ACRES
OR THEREABOUT OF LR NO. MAGUMONI/THUITA/1318
LOISE MUTHONI NJAGI..............................................................PLAINTIFF
VERSUS
MARGARET CIAMBAKA MUGAMBI.....................................DEFENDANT
RULING
1. This application is dated 30th May, 2019.
2. On 12th June, 2019, when the matter came up for interpartes hearing Mr. Atheru for the plaintiff and Miss Kiai for the defendant proffered a consent which they asked the court to adopt as its order. The consent is in the following form:
“CONSENT
1. The application dated 30th May,2019 be and is hereby allowed in the following terms:-
a. There be a stay of execution of judgment delivered by this honourable court on 22nd May, 2019 and any other consequential orders pending hearing and determination of the intended appeal.
b. The defendant/applicant to file the said appeal within 30 days after being supplied with the certified copies of typed proceedings and judgment.
c. In default of (b) above execution to issue.
d. Costs of the said application shall be costs in the appeal.
Dated the 12th day of June, 2019
Signed Atheru Adv for plaintiff/respondent
Signed Betty W. Kiai for Joe Kathungu & Co. Adv.
3. I decline to adopt the consent in its present format as it goes against the provisions of order 42 rule 6, 2(b) of the Civil Procedure Rules. In lieu thereof, I substitute it to read as follows:
a. The appellant is required to deposit with court as security the sum of Kshs. One Million (Kshs.1,000,000/=) within twenty one days of today FAILING which the stay of execution granted herein will automatically lapse.
b. Subject to the provision of security as ordered above, stay of Execution of judgment delivered by this court on 22nd May, 2019 and any other consequential orders is GRANTED pending hearing and determination of the intended appeal.
c. The defendant/applicant is ordered to file the intended appeal within 30 days of today FAILING which the stay granted herein shall stand vacated and, therefore, inconsequential.
d. For avoidance of doubt, it is clarified that default in satisfying any of the orders granted herein shall render the stay granted herein automatically vacated.
e. Costs of this application shall be in the cause.
f. Parties to come to court for directions on 23rd July, 2019
Delivered in open Court at Chuka this 12th day of June, 2019 in the presence of:
CA: Ndegwa
Atheru for the Plaintiff/Respondent
Betty Kiai for the Defendant/Applicant
P. M. NJOROGE,
JUDGE.