[2019] KEELC 4660 (KLR)
The court found that the applicant had filed a Notice of Appeal and expressed willingness to provide security. The application was made promptly after judgment. The court exercised its discretion to grant a stay of execution of the judgment, conditional upon the applicant depositing KES 1,000,000 as security within...
Source-derived case information.
- Citation
- [2019] KEELC 4660 (KLR)
- Parties
- Applicant: Lucy Karauki Kirambia (suing as the legal representative of the estate of Peter Muriungi Kaunga, deceased); Respondent: Muthengi M’Mwathi Muthigu; Respondent: Tharaka District Land Adjudication Officer; Respondent: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 208 of 2019
- Procedural Posture
- Stay Application / Ruling on Ex Parte Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted conditionally pending inter partes hearing.
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Process, Land Adjudication
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lucy Karauki Kirambia (suing as the legal representative of the estate of Peter Muriungi Kaunga, deceased)
Applicant
Muthengi M’Mwathi Muthigu
Respondent
Tharaka District Land Adjudication Officer
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Stay Application / Ruling on Ex Parte Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the applicant has demonstrated sufficient grounds for grant of stay, including risk of substantial loss and readiness to provide security.
- 3 Whether the application was made without undue delay.
Ratio Decidendi
The court found that the applicant had filed a Notice of Appeal and expressed willingness to provide security. The application was made promptly after judgment. The court exercised its discretion to grant a stay of execution of the judgment, conditional upon the applicant depositing KES 1,000,000 as security within 30 days. The court considered that failure to provide security would result in the lapse of the stay order. The orders were made to preserve the status quo pending the inter partes hearing of the application, ensuring that the intended appeal would not be rendered nugatory and that the respondents would not be prejudiced.
Court Disposition
Stay of execution granted conditionally pending inter partes hearing.
Orders
- Prayer 2 for stay of execution is allowed subject to the applicant depositing KES 1,000,000 as security within 30 days, failing which the stay lapses.
- Applicant to serve the orders upon the respondents within 14 days.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 208 OF 2017
FORMERLY MERU ELC NO. 169 OF 2013
LUCY KARAUKI KIRAMBIA (suing as the legal representative of the estate of
Peter Muriungi Kaunga (deceased)..........................................................PLAINTIFF
VERSUS
MUTHENGI M’MWATHI MUTHIGU........................................1ST DEFENDANT
THARAKA DISTRICT LAND ADJUDICATION OFFICER...2ND DEFENDANT
THE HONOURABLE ATTORNEY GENERAL........................3RD DEFENDANT
RULING
1. This application is dated 14th January, 2019 and seeks orders:
1. That this application because of its nature be certified urgent and the same be dealt with on priority basis.
2. That the honourable court be pleased to order stay of execution of the judgment/decision herein pending the hearing and determination of this application.
3. That the honourable court be pleased to order a temporary stay of execution of the judgment/decree herein pending the hearing and determination of the intended appeal.
4. That the honourable court be pleased to grant such other and or better orders as may meet the ends of justice.
2. The application is buttressed by the applicants supporting affidavit sworn on 14th January, 2019 and has the following grounds:
i) That judgment herein was delivered on 19th day of December, 2018.
ii) That the applicant was dissatisfied and has preferred an appeal to the court of appeal.
iii) That unless stay of execution of the judgment is ordered the applicants/intended appellants stand to suffer irreparable and substantial loss.
iv) That the applicant’s intended appeal has overwhelming chances of success and unless stay is ordered the outcome of the intended (sic) will be rendered nugatory.
v) That the applicant/intended appellant is ready and willing to deposit reasonable security.
vi) That no prejudice will be occasioned the respondent.
vii) That this application has been made without any undue delay.
3. At the exparte stage, Mr. Mokua, the applicant’s advocate, told the court that the applicant had already filed a Notice of Appeal and had served it upon Mr. Mwanzia, the plaintiff’s advocate. He told the court that his client was willing to offer a deposit for security.
4. Having considered the pleadings in this application and the oral submissions made by the applicant’s advocate, I issue the following orders:
a) Prayer 2 in the application is allowed subject to the applicant depositing with court as security the sum of Kshs. One Million (1000,000/= ) within the next 30 days failing which the order of stay granted herein will automatically lapse.
b) The applicant is directed to serve the orders issued today by the court upon the respondents within 14 days of today.
c)The application will be heard interpartes on 25th March, 2019
5. Costs shall be in the cause.
6. It is so ordered.
Delivered in open Court at Chuka this 16th day of January, 2019 in the presence of:
CA: Ndegwa
Mokua for the applicant
P. M. NJOROGE
JUDGE