[2009] KEHC 3399 (KLR)
The court found that the status quo should be maintained to prevent the transfer of the disputed land to third parties, which could render the appeal nugatory. Since the respondent is not at risk of eviction and remains in occupation, he would not suffer prejudice if the stay is granted. However, the court agreed...
Source-derived case information.
- Citation
- [2009] KEHC 3399 (KLR)
- Parties
- Plaintiff: M’Thambu Mutindwa; Defendant: Richard Baruni Mutindwa; Defendant: Linus Kaburu Mugendi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 21 of 1998
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- J Karanja
- Legal Topics
- Stay of Execution, Security for Costs, Status Quo Orders, Title Deed Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Thambu Mutindwa
Plaintiff
Richard Baruni Mutindwa
Defendant
Linus Kaburu Mugendi
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 decree pending appeal.
- 2 Whether the deposit of the title deed for the disputed land is acceptable as security for costs.
- 3 Whether granting a stay would prejudice the respondent.
Ratio Decidendi
The court found that the status quo should be maintained to prevent the transfer of the disputed land to third parties, which could render the appeal nugatory. Since the respondent is not at risk of eviction and remains in occupation, he would not suffer prejudice if the stay is granted. However, the court agreed with the respondent that the title deed for the disputed land cannot be accepted as security. Therefore, the application for stay of execution was allowed on condition that the applicant deposits Ksh 60,000 as security for costs within 30 days, failing which the respondent would be at liberty to execute the decree.
Court Disposition
application for stay of execution allowed with conditions
Orders
- Stay of execution of the decree granted pending appeal.
- Applicant to deposit Ksh 60,000 as security for costs within 30 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 21 of 1998
M’THAMBU MUTINDWA…………….................……….PLAINTIFF
VERSUS
RICHARD BARUNI MUTINDWA………....……1ST DEFENDANT
LINUS KABURU MUGENDI…………………...2ND DEFENDANT
RULING
Linus Kaburu Mugendi has filed the application dated 18/10/2008 through Duncan Muyodi & Co. Advocates. The same is brought under Order XLI Rule 4 of the Civil Procedure Rules. He seeks an order for stay of execution of the Decree in Civil Case No. 21 of 1998 while pending the hearing and determination of Civil Appeal No. 149 of 2008 pending before the Kenya Court of Appeal. He relies on 7 grounds on the face of the application and on his supporting affidavit dated 18/10/2008. I did not see the respondents replying affidavit in the file but the same was opposed by his counsel Mr. Kariithi who said that it was defective and that the applicant cannot seek to deposit the Title Deed for the same disputed plot as security in this case. The Applicant has nonetheless in paragraph 9 of his supporting affidavit offered to provide any other security as the court may direct. I have considered the application in question along with the oral address by both counsel in court. Both parties agree that the applicant herein holds the Title Deed to the property in question but it is the plaintiff/Respondent who is and has been in physical occupation all along. The applicant therefore contends that if stay is granted, the respondent will not be prejudiced as he will continue to live on the same land. The Applicant however fears that if the Judgment/decree is executed and the land is transferred to the respondent herein, he might transfer the same to other 3rd parties and his appeal will therefore be rendered nugatory. I have tried to balance these 2 positions. My finding is that the status quo should be maintained i.e the status quo pertaining as at now and as at the time the suit was filed. It will be important that the land in question is not transferred to a 3rd party in case the appeal succeeds. Since the respondent is not faced with eviction, he actually stands to suffer no prejudice whatsoever if the stay orders are granted. I nonetheless agree with Mr. Kariithi that the suit land cannot act as the security in this matter. While allowing the application for stay of execution, I order that the 2nd defendant/applicant deposits Ksh 60,000/- as security for costs within the next 30 days failing which the plaintiff/Respondent will be at liberty to execute this court’s decree. Costs of this application will abide by the results of the appeal.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 3rd day of June 2009.
In presence of Mr. Muchira for Mr. Kariithi for Mr. Okwaro for Applicant.
W. KARANJA
JUDGE