[2021] KEELC 642 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, did not explain the inordinate delay in filing the application, and failed to offer any security for the due satisfaction of the decree. The applicant also did not show that the respondents would be...
Source-derived case information.
- Citation
- [2021] KEELC 642 (KLR)
- Parties
- Appellant: M’Kirika Kanoro; Respondent: Kahawa Self Help Group (Suing through its officials); Respondent: Jacob Gatobu Muuna; Respondent: Stanley Mubichi; Respondent: Batholomew Mwaka; Respondent: Shadrack Kinoti; Respondent: Nicholas Muriungi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E053 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Delay in Application, Fraudulent Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Kirika Kanoro
Appellant
Kahawa Self Help Group (Suing through its officials)
Respondent
Jacob Gatobu Muuna
Respondent
Stanley Mubichi
Respondent
Batholomew Mwaka
Respondent
Shadrack Kinoti
Respondent
Nicholas Muriungi
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 2 Whether there was inordinate delay in filing the application for stay.
- 3 Whether the applicant has offered adequate security for due performance of the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, did not explain the inordinate delay in filing the application, and failed to offer any security for the due satisfaction of the decree. The applicant also did not show that the respondents would be unable to refund the decretal sum if the appeal succeeded. However, in consideration of the overriding objective and the need to balance the interests of justice, the court exercised discretion to grant conditional stay, requiring the applicant to deposit Kshs. 300,000 and the original title deed in court within two weeks, with further directions on the expeditious hearing of...
Court Disposition
Conditional stay of execution granted.
Orders
- Applicant to deposit Kshs. 300,000 in court within 2 weeks from the date of the ruling.
- Applicant to deposit the original title deed in court within 2 weeks from the date of the ruling.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. E053 OF 2019
M’KIRIKA KANORO.....................................................APPELLANT
VERSUS
KAHAWA SELF HELP GROUP
(Suing through its officials)....................................1st RESPONDENT
JACOB GATOBU MUUNA................................2ND RESPONDENT
STANLEY MUBICHI..........................................3RD RESPONDENT
BATHOLOMEW MWAKA................................4TH RESPONDENT
SHADRACK KINOTI........................................5TH RESPONDENT
NICHOLAS MURIUNGI...................................6TH RESPONDENT
RULING
1. Before the court is the application dated 12. 10. 2021 supported by an affidavit by M’Kirika Kanoro.It seeks stay of execution of the decree issued by the lower court on 17. 2.2021 pending the hearing of this appeal.
2. The basis of the application is that there is apprehension of the respondent disposing of the subject land to third parties so as to render the appeal nugatory yet the appellant has a legitimate purchaser’s rights and is likely to be prejudiced. The substratum of the appeal may also dissipate unless the orders sought are granted.
3. The appellant further claims he has been occupying and utilizing the land with the full knowledge of the respondents who are unlikely to be prejudiced if the application is allowed.
4. The application is opposed through a replying affidavit sworn on 1. 11. 2021 by Stanley Mabichi on the grounds that there has been inordinate delay in lodging the application; no substantial loss has been demonstrated; as a successful litigant he is entitled to enjoy fruits of the decree; no decree has been extracted; a similar application was rejected on 9. 9.2021; the appeal lacks merits; Kshs. 600,000/= general damages awarded in favour of the 1st respondent has not been paid and no security has been offered.
5. For the applicant to succeed, he has to show there is substantial loss, there was no inordinate delay in seeking the orders, an offer for security has been offered and lastly it is in the interest of justice the orders sought are granted. See Giafranco Manenthi & Another –vs- Africa Merchant Assurance Co. Ltd [2019] eKLR, Butt –vs- Rent Restriction Tribunal [1982] eKLR 417.
6. Courts have held it is not enough to just plead substantial loss on an impending execution since such an execution is a legal consequence out of a legal process See James Wangalwa & Another –vs- Agnes Naliaka Cheseto [2012] eKLR.
7. In Charles Wahome Gethi –vs- Angela Wairimu Gethi [2008] eKLRthe court held that mere stating one lives and resides on the suit land was not enough, and that compelling reasons must be given as to why there should be a stay.
8. In the instant case, the lower court held the appellant was fraudulently sold and transferred L.R No. Nkuene/Taita/1139 by the 5th and 6th respondents. The sale and transfer was nullified and order made for payment of general damages of Kshs. 600,000/=.
9. The appellant had not counterclaimed for the land in the lower court. He has not demonstrated what loss he is likely to suffer. Secondly, on the issue of general damages, he has not alleged the respondents would be unable to refund the same in the event he is successful in the appeal as held in Kenya Hotels Properties Ltd. –vs- Willesden Investments Ltd. [2007] eKLR.
10. Further the appellant has not offered any security for the due satisfaction of the decree such as depositing the impugned original title deed before this court or depositing the decretal sum in an interest earning account as held in Alex Khalumba –vs- Harrison Anukutse [2019] eKLR.
11. Lastly there has been inordinate delay in filing the application which has not been explained at all. In sum, I find the appellant has not met the threshold under Order 42 rule 6of the Civil Procedure Rules.
12. Given that this court must also consider the overriding objective as laid out under Sections 1A, 1B & Article 159 of the Constitution, I order the applicant to deposit Kshs. 300,000/= in court together with the original title deed in court within 2 weeks from the date hereof. The appeal shall be set down for hearing within 3 months from the date hereof failure of which orders herein shall stand vacated. The record of appeal shall also be filed within 45 days from the date hereof.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 1ST DAY OF DECEMBER, 2021
In presence of:
Kiome for applicants
Mukaguru for 1st and 2nd respondents
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE