[1999] KECA 101 (KLR)
The Court found that since the transfer of the land had already been effected and a title deed issued in favour of the respondent, the application for stay of execution had been overtaken by events. Any order for stay would be futile as the subject matter had already changed hands. The assurance by the respondent's...
Source-derived case information.
- Citation
- [1999] KECA 101 (KLR)
- Parties
- Applicant: M'Murungi M'Mbwiria; Respondent: M'Mungania M'Ikiara
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 318 of 1998
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- AB Shah
- Legal Topics
- Stay of Execution, Transfer of Land, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Murungi M'Mbwiria
Applicant
M'Mungania M'Ikiara
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted after the judgment has already been executed and title transferred.
- 2 Whether the court can grant a stay where the subject matter has already changed hands.
Ratio Decidendi
The Court found that since the transfer of the land had already been effected and a title deed issued in favour of the respondent, the application for stay of execution had been overtaken by events. Any order for stay would be futile as the subject matter had already changed hands. The assurance by the respondent's counsel that the land would not be further transferred or alienated during the pendency of the intended appeal did not alter the fact that the application was now moot. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, TUNOI & SHAH, JJ.A.) CIVIL APPLICATION NO. NAI. 318 OF 1998 (124/98UR) BETWEEN
M'MURUNGI M'MBWIRIA ..................................APPLICANT AND M'MUNGANIA M'IKIARA .................................RESPONDENT
(Application for stay of execution from Judgment and Decree of the High Court of Kenya at Nairobi (Justice Etyang) dated 7th August, 1998
in
H.C.C.C. NO. 187 OF 1997 (O.S.)) ******************** RULING OF THE COURT
The applicant by this application brought under rule 5(2)(b) of the Rules of this Court asks us to stay the execution of the judgment and order made by the learned Judge on 7th August, 1998 whereby he ordered that one acre of land be exercised from the applicant's land parcels numbers Nkuene/Kathera/1374, 1375 and 1378 and the same be registered in favour of the respondent.
As can be seen from the documents and the transfer instruments, the Executive Officer of the High Court of Kenya at Meru has already effected the transfer in favour of the respondent and Title Deed was issued on 7th January, 1999. It is obvious, therefore, that this application has been overtaken by events and any orders that we were minded to make may be in vain. However, we have been assured by Mr. Kithinji, counsel for the respondent, that the land, the subject matter of the intended appeal, will not be transferred to third parties or in any way alienated or interfered with during the pendency of the intended appeal.
In the circumstances, this application fails and is hereby dismissed. We make no order as to costs.
Made at Nairobi this 24th day of March, 1999.
R.S.C. OMOLO
..................
JUDGE OF APPEAL
P.K. TUNOI
..................
JUDGE OF APPEAL
A.B. SHAH
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR