[2015] KEELC 632 (KLR)
The court found that the application for stay of execution was brought without unreasonable delay, as it was filed within 20 days of the ruling. However, the applicant failed to demonstrate that she would suffer substantial loss if the stay was not granted. The court noted that there was nothing to be executed in...
Source-derived case information.
- Citation
- [2015] KEELC 632 (KLR)
- Parties
- Plaintiff: Mnang'at Stephen Pamba; Plaintiff: Salome Chepkemei Losiangole; Defendant: James Mariach Kokita; Defendant: Veronica C. Akokor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 18 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- EO Obaga
- Legal Topics
- Stay of Execution, Injunctions, Land Sale Disputes, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mnang'at Stephen Pamba
Plaintiff
Salome Chepkemei Losiangole
Plaintiff
James Mariach Kokita
Defendant
Veronica C. Akokor
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the injunction pending appeal.
- 2 Whether the application was brought without unreasonable delay.
- 3 Whether the applicant will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution was brought without unreasonable delay, as it was filed within 20 days of the ruling. However, the applicant failed to demonstrate that she would suffer substantial loss if the stay was not granted. The court noted that there was nothing to be executed in the injunction order, as the respondents were already in possession of the land after paying the full purchase price. The applicant was still holding the respondents' money and could not claim both the land and the purchase price. Since the requirement of substantial loss was not met, the court found no basis to consider security for due performance. Consequently, the application...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 18 OF 2014
MNANG'AT STEPHEN PAMBA
SALOME CHEPKEMEI LOSIANGOLE ::::::: PLAINTIFFS
VERSUS
1. JAMES MARIACH KOKITA
2. VERONICA C. AKOKOR :::::::::::::::: DEFENDANTS
R U L I N G
The applicant filed an application dated 23/6/2014 seeking stay of execution of the court's ruling of 3/6/2014 pending hearing and determination of an appeal filed against the same in the court of Appeal. The application is supported by the supporting affidavit of her Advocate George Stephen Nyakundi sworn on 23/6/2014.
The applicant contends that she has preferred an appeal against the court's ruling of 3/6/2014 and that, the appeal has high chances of success and that if stay is not granted she will suffer prejudice as she is the registered owner of LR No. West Pokot/Keringet “A”/4050.
The applicant's application is opposed through a replying affidavit sworn by the first respondent on 19/9/2014 and filed in court on the same day. The respondents contend that the applicant's application is misconceived and the orders sought cannot be granted. They contend that there is nothing capable of being executed and that allowing the application will be like allowing the appeal itself.
The ruling being sought to be stayed is a ruling granting the respondents an injunction against the applicant and her husband from interfering with two acres which they had sold to the respondents. The applicant and her husband had sold two acres to the respondents who paid the full purchase price. The respondents were put in possession but the applicants later changed their minds and purported to refund the purchase price. The respondents then filed an application for injunction seeking to restrain the applicants from interfering with the two acres sold to them pending hearing and determination of the suit. The injunction was granted. It is this injunction which they seek to stay.
Under Order 42 of the Civil Procedure Rules, stay of execution cannot be granted unless the court is satisfied that first the application has been brought without unreasonable delay. Secondly that the applicant will suffer substantial loss if stay is not granted. Thirdly, there should be such security as the court orders for the due performance of the decree or order as may ultimately be binding upon the applicant. In the instant case the ruling being appealed against was delivered on 3/6/2014. The current application was made on 23/6/2014. The application was therefore brought without unreasonable delay.
Has the applicant demonstrated that she will suffer substantial loss if the stay is not granted? I do not think the applicant will suffer any loss if stay is not granted. She has not demonstrated how failure to grant stay will prejudice her as she claims. There is nothing to be executed in the order. She is still holding the respondents money and she cannot seek to have the land at the same time. The order for security is only considered if the applicant has demonstrated that she will suffer substantial loss if stay is not granted. She is free to move on with her appeal against the ruling of 3/6/2014. I find that her application cannot be allowed. The same is hereby dismissed with costs to the respondents.
It is so ordered.
Dated, signed and delivered at Kitale on this 5th day of March, 2015.
E. OBAGA
JUDGE
In the Presence of Mr Nyakundi for applicant and Mr Ingosi for respondent. Court Clerk – Kassachoo.
E. OBAGA
JUDGE
5/3/2015