[2024] KEELC 4070 (KLR)
The court found that the applicant filed the appeal and the application for stay within the prescribed time and that the Memorandum of Appeal raised arguable issues. Although no evidence of imminent eviction or execution was annexed, the court considered it prudent to preserve the suit property pending appeal, given...
Source-derived case information.
- Citation
- [2024] KEELC 4070 (KLR)
- Parties
- Appellant: Patrick Mwandango Mkwachu; Respondent: George Mwaviswa Mbogho
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E002 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed to the extent of maintaining status quo.
- Judges
- EK Wabwoto
- Legal Topics
- Stay of Execution, Preservation of Property, Substantial Loss, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwandango Mkwachu
Appellant
George Mwaviswa Mbogho
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant filed the appeal and the application for stay within the prescribed time and that the Memorandum of Appeal raised arguable issues. Although no evidence of imminent eviction or execution was annexed, the court considered it prudent to preserve the suit property pending appeal, given the triable issues raised. The court exercised its discretion under the Environment and Land Court Act and relevant practice directions to order maintenance of the prevailing status quo, ensuring that the subject matter of the appeal is not rendered nugatory and that justice is served to both parties. The costs of the application were ordered to be in the cause.
Court Disposition
Application for stay of execution pending appeal allowed to the extent of maintaining status quo.
Orders
- Pending the hearing and determination of this Appeal the parties are hereby directed to maintain the prevailing status quo in respect to the suit property at the time of this Ruling.
- The costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
Mkwachu v Mbogho (Environment and Land Appeal E002 of 2024) [2024] KEELC 4070 (KLR) (Environment and Land) (22 May 2024) (Ruling)
Neutral citation: [2024] KEELC 4070 (KLR)
Republic of Kenya
In the Environment and Land Court at Voi
Environment and Land
Environment and Land Appeal E002 of 2024
EK Wabwoto, J
May 22, 2024
Between
Patrick Mwandango Mkwachu
Appellant
and
George Mwaviswa Mbogho
Defendant
(Being an Appeal from the judgment of Hon. T.N. Sinkiyian, Principal Magistrate on 15th January 2024 in Voi CM ELC No. E002 of 2024)
Ruling
1. The Appellant has moved this court vide an application dated 14th February 2024 seeking orders staying the judgment delivered by Hon. Sinkiyian, Principal Magistrate on 15th January 2024 in respect to Voi CM ELC No. 14 of 2020.
2. The application is premised on the grounds on the face of it and further supported by the Affidavit of Patrick Mwandango Mkwachu sworn on 14th February 2024. The Appellant deponed that he was dissatisfied with the decision of the trial court and has since filed an appeal. It was averred that the judgment delivered by the trial court gave a grace period of 90 days wherein the Respondent may be at liberty to execute and that he seeks court’s protection against the said execution. He also averred that if the said orders are not granted, his appeal will be rendered nugatory. During the plenary hearing of the application Learned Counsel Mwazighe added that the 90 days period have lapsed and the court needs to consider granting the orders sought in the application.
3. The application was opposed by the Respondent vide a Replying Affidavit sworn on 17th April 2024. It was averred that the application is made in bad faith and meant to deny him the fruits of his judgment. It was also averred that the applicant has not satisfied the conditions for stay. The appeal has no chances of success and the applicant has not demonstrated what substantial loss he will suffer if stay of execution is not granted. It was also averred that the application has been made after an unreasonable delay. The court was urged to dismiss the application.
4. Having considered the application, the affidavits in support and in opposition, and submissions made, the issue for determination is whether the orders sought by the applicant herein are merited.
5. As per the provisions of Order 42 rule 6 of the Civil Procedure Code, the Appellant is required to satisfy all the requirements set out therein to be entitled to orders of stay of execution. The requirements as per the above provision are threefold: whether there is sufficient cause; whether there is likelihood of substantial loss and whether security for the due performance of the decree has been provided.
6. In the instant application, judgment was delivered on 15th January 2024 and the appellant filed a Memorandum of Appeal on 14th February 2024. The Appellant came to court within the time allowed. I have also perused the Memorandum of Appeal and it is my considered opinion that it raises arguable issues.
7. On substantial loss, the Appellant avers that he will be evicted from the property anytime since the 90 days have already lapsed.
8. The court has perused the affidavits filed by the parties. No party annexed any evidence of the intended eviction and or execution of the decree issued by the trial court, however since the Appeal has already been filed which the court is seized of the same and the same raises triable issues, it is only prudent that the suit property be preserved pending the hearing and determination of the Appeal.
9. Section 13(7) (a) of the Environment and Land Court Act, 2015 (2011) abundantly provides for this Court’s mandate to grant interim preservation orders.
10. Practice Direction Number 32 of the Environment and Land Court Practice Directions, 2014 provides:“During interpartes hearing of any interlocutory application, where appropriate, parties are encouraged to maintain status quo------ after considering the nature of the case or hearing both sides the judge shall exercise discretion to order for status quo pending the hearing and determination of the suit keeping in mind the overriding interests of justice.”
11. Consequently, the following orders are issued in respect to the application dated 14th February 2024;i.Pending the hearing and determination of this Appeal the parties are hereby directed to maintain the prevailing status quo in respect to the suit property at the time of this Ruling.ii.The costs of the application shall be in the cause.It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT VOI THIS 22ND DAY OF MAY 2024. E. K. WABWOTOJUDGEIn the presence of:-Mr. Mwazighe for the Appellant.N/A for the Respondent.Court Assistants: Mary Ngoira.