[2023] KEELC 20801 (KLR)
The court found that the stay of execution orders previously granted had lapsed automatically due to the appellants' failure to comply with the conditions within the prescribed period. There were therefore no subsisting orders capable of being extended or reinstated. The court further held that the application was...
Source-derived case information.
- Citation
- [2023] KEELC 20801 (KLR)
- Parties
- Appellant: Maganjo & Company Limited; Appellant: Peter Karanja Thou; Appellant: Hannah Wanjiru Thou; Appellant: Hamud Mohammed Osman; Respondent: Njogu Maregwa; Respondent: Nambiri Magu; Respondent: Winfred Njogu Mwaniki; Respondent: Patrick Mwaniki Mbuogo t/a Maganjo & Company
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E041 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Notice of Motion to Reinstate and Extend Stay Orders and Extend Time for Security Deposit
- Outcome
- application dismissed with costs to the respondents
- Judges
- LC Komingoi
- Legal Topics
- Stay of Execution, Extension of Time, Res Judicata, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maganjo & Company Limited
Appellant
Peter Karanja Thou
Appellant
Hannah Wanjiru Thou
Appellant
Hamud Mohammed Osman
Appellant
Njogu Maregwa
Respondent
Nambiri Magu
Respondent
Winfred Njogu Mwaniki
Respondent
Patrick Mwaniki Mbuogo t/a Maganjo & Company
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Notice of Motion to Reinstate and Extend Stay Orders and Extend Time for Security Deposit
Legal Issues
- 1 Whether the court can reinstate and extend lapsed stay of execution orders.
- 2 Whether the court can extend time for the 4th appellant to deposit security after expiry of the original period.
- 3 Whether the application is res judicata and an abuse of court process.
Ratio Decidendi
The court found that the stay of execution orders previously granted had lapsed automatically due to the appellants' failure to comply with the conditions within the prescribed period. There were therefore no subsisting orders capable of being extended or reinstated. The court further held that the application was res judicata, as the issues raised had already been determined in earlier proceedings. The application was deemed an abuse of the court process and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The Notice of Motion dated 30th August 2023 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
39 paragraphs
Maganjo & Company Limited & 3 others v Maregwa & 3 others (Environment and Land Appeal E041 of 2022) [2023] KEELC 20801 (KLR) (17 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20801 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Appeal E041 of 2022
LC Komingoi, J
October 17, 2023
Between
Maganjo & Company Limited
1st Appellant
Peter Karanja Thou
2nd Appellant
Hannah Wanjiru Thou
3rd Appellant
Hamud Mohammed Osman
4th Appellant
and
Njogu Maregwa
1st Respondent
Nambiri Magu
2nd Respondent
Winfred Njogu Mwaniki
3rd Respondent
Patrick Mwaniki Mbuogo t/a Maganjo & Company
4th Respondent
Ruling
1. This is the Notice of Motion dated 30th August 2023 brought under;Order 45 Rule 1 of the Civil Procedure Rules, Section 3A and 80 of the Civil Procedure Act, The Judicature Act, High Court (Practice and Procedure)Rules and all other enabling Provisions of Law
2. It seeks orders;1. Spent.2. Spent.3. That this Honourable Court be pleased to reinstate and extend the orders of stay of execution issued on 20th December 2022 pending the hearing and determination of this application.4. That This Honourable court be pleased to extend the time for the 4th Appellant to deposit the security in the sum of Kshs.500,000 by Seven (7) days from the date of such extension.5. That the costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 8.
4. The Application is supported by the affidavit by Hamud Mohamed Osman, the 4th Appellant/Applicant, sworn on the 30th August 2023.
5. In response the Respondent filed a Preliminary Objection and a Replying Affidavit sworn on the 8th September 2023.
6. I have considered the Notice of Motion and the Affidavit in Support, the responses thereto, the rival submissions and the authorities cited. The issue for determination is whether this application is merited.
7. On the 20th December 2022, this court vide a comprehensive ruling, granted the Appellants stay of execution on some conditions. They were to comply within forty five (45) days.
8. On the 6th March 2023, the Appellants had not complied with the orders and the court granted them seven (7) days to do so failure to which the stay orders would lapse automatically.
9. As things stand, there are no orders capable of extension. When the matter came up before the Duty Judge on 30th August 2023 she did not have the benefit of perusing the physical file.
10. This could be the reason why she granted interim orders of stay.
11. I agree with counsel for the Respondent this application is res judicata.
12. I find this application to be an abuse of the court process and the same is dismissed with costs to the Respondents.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 17TH DAY OF OCTOBER 2023. L. KOMINGOIJUDGE