[2011] KEHC 2549 (KLR)
The court found that the applicant had already been evicted from the suit property and execution of the decree was complete prior to the filing of the application for stay. The applicant herself confirmed in her affidavit that the respondents had taken possession and demolished her property following the lower...
Source-derived case information.
- Citation
- [2011] KEHC 2549 (KLR)
- Parties
- Appellant: Lucy Wangui Munge; Respondent: Peter M. Ngugi; Respondent: Geoffrey N. Nyoike; Respondent: Hosea M. Mwika
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 195 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- SP Ouko
- Legal Topics
- Stay of Execution, Eviction Proceedings, Security for Costs, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wangui Munge
Appellant
Peter M. Ngugi
Respondent
Geoffrey N. Nyoike
Respondent
Hosea M. Mwika
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether substantial loss would result to the applicant if stay is not granted.
- 3 Whether the application for stay was brought without undue delay.
Ratio Decidendi
The court found that the applicant had already been evicted from the suit property and execution of the decree was complete prior to the filing of the application for stay. The applicant herself confirmed in her affidavit that the respondents had taken possession and demolished her property following the lower court's decision. As execution was complete and the application was not brought promptly, the court held that the requirements for granting a stay of execution were not met. Consequently, the application for stay pending appeal was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO.195 OF 2010
LUCY WANGUI MUNGE.............................................................................................APPELLANT/APPLICANT
VERSUS
PETER M. NGUGI....................................................................................................................1ST RESPONDENT
GEOFFREY N. NYOIKE...........................................................................................................2ND RESPONDENT
HOSEA M. MWIKA.................................................................................................................3RD RESPONDENT
RULING
The court below at Naivasha in CMCC No.15 of 2009 entered judgment in favour of the respondents in this application but dismissed the applicant’s counterclaim. The implication of that was that the applicant was to vacate NAIVASHA/MWICHIRIGI BLOCK 6/1332 the subject matter of the dispute.
The applicant being aggrieved has preferred this appeal. In the meantime, she has brought the instant application for orders of temporary stay pending the determination of the appeal. She has deposed that she is apprehensive that the respondents may execute the decree by disposing of the suit property or demolishing the structures on the suit property.
In response, the respondents through the 1st respondent has deposed that the supporting affidavit has not been sworn by the applicant as the signature on it is significantly different from that used in the pleadings in the lower court; that the application for stay is misconceived as the applicant had already been evicted from the suit land.
I have considered the arguments. No order of stay of execution will be granted unless the court is satisfied that substantial loss may result to the applicant. No stay will be granted unless the application has been brought without undue delay and the applicant has demonstrated readiness to abide by any order as to security. It has been deposed and not rebutted that the execution is compete; that the applicant was infact evicted from the suit property on 23rd January, 2009, several months before this application was brought. As a matter of fact, the applicant herself has confirmed this position in her affidavit in support of an application for stay in the lower court in which she deposed that the respondents had moved onto the suit property and demolished her property on the basis of that court’s decision of 22nd January, 2009. See paragraphs 4 and 9 of the supporting affidavit dated 30th January, 2009. With that explicit averment that execution is complete, this court cannot grant orders in
For these reasons, the application fails and is dismissed with costs.
Dated, Delivered and Signed at Nakuru this 28th day of February, 2011.
W. OUKO
JUDGE