[2014] KEHC 1155 (KLR)
The court found that the application for stay of execution was made at the last possible moment, exactly at the expiry of the 90-day period granted for the parties to vacate the suit land. The applicants failed to demonstrate sufficient cause or that they would suffer substantial loss if the stay was not granted....
Source-derived case information.
- Citation
- [2014] KEHC 1155 (KLR)
- Parties
- Plaintiff: Mohamed Ali Askul; Defendant: Ali Mbwana & 13 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 271 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Appeal Pending, Eviction Orders, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ali Askul
Plaintiff
Ali Mbwana & 13 Others
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment delivered on 6th December 2013 pending appeal.
- 2 Whether the applicants have demonstrated sufficient cause for the grant of stay of execution.
- 3 Whether the applicants should be required to deposit security as a condition for stay.
Ratio Decidendi
The court found that the application for stay of execution was made at the last possible moment, exactly at the expiry of the 90-day period granted for the parties to vacate the suit land. The applicants failed to demonstrate sufficient cause or that they would suffer substantial loss if the stay was not granted. The court was not persuaded by the applicants' arguments regarding their long occupation or the prospects of their intended appeal. The respondent's concerns about loss of use of his property were noted, but the court ultimately found no merit in the application for stay. Consequently, the application was dismissed without orders as to costs.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 271 OF 2007
MOHAMED ALI ASKUL....................................PLAINTIFF/RESPONDENT
- VERSUS -
ALI MBWANA & 13 OTHERS......................DEFENDANTS/APPLICANTS
RULING
[1] The applicants filed this notice of motion on 6th March 204 he prays that this matter be certified urgent. That there be a stay of the judgment delivered on 6th December 2013 pending the determination of the appeal which the defendants intend to file. The applicants state that they have resided on the suit land for over sixty years and that they have no where else to go and that the appeal has high chances of success.
[2] The respondent filed a replying affidavit and denied that the applicants have nowhere to go. He argued that he stands to lose massively in terms of usage of his properties. He urged the court not to allow the application and that if+ it is allowed, the applicants be ordered to deposit Kshs. 5 million to take care of the suit properties pending the prosecution of the appeal.
[3] When this judgment was delivered by Justice Tuiyot on 6th December 2013 there was no application for stay of execution by way of the respondents. The learned judge gave the parties 90 days to move and vacate out of the two plots belonging to the plaintiffs. This application was made exactly on expiry of 90 days in a bid by the applicants to buy more time.
I find no merit in this application and I dismiss it with no orders as to to costs.
Dated and delivered in open court this 14th day of November 2014.
S. MUKUNYA
JUDGE
14. 11. 2014
In the presence of:
Mr. Obara Advocate for the defendant
Miss. Oluoch advocate for Mr.Omwenga Advocate