[2024] KEELC 5878 (KLR)
The court held that the mere filing of an appeal and an application for stay of execution does not, by itself, operate as a stay of execution. The Plaintiff was entitled to change her advocate in accordance with the Civil Procedure Rules. The court further found that it was just and appropriate to enforce its...
Source-derived case information.
- Citation
- [2024] KEELC 5878 (KLR)
- Parties
- Plaintiff: Betha Ndumba M’Twaruchiu; Defendant: Paul Wambugu Wachira; Defendant: Mwichwiri Two Farmers Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2022
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Application
- Outcome
- Application allowed in full.
- Judges
- AK Bor
- Legal Topics
- Survey Costs Apportionment, Execution of Judgment, Change of Advocate, Stay of Execution, Land Parcel Determination
- 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
Betha Ndumba M’Twaruchiu
Plaintiff
Paul Wambugu Wachira
Defendant
Mwichwiri Two Farmers Company Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the Plaintiff is entitled to have her new advocate come on record in place of the previous advocate.
- 2 Whether the 1st Defendant should be compelled to contribute his equal share of the surveyor’s costs as per the court's earlier judgment.
- 3 Whether the pendency of an appeal and application for stay of execution before the Court of Appeal operates as a stay of execution of the judgment.
Ratio Decidendi
The court held that the mere filing of an appeal and an application for stay of execution does not, by itself, operate as a stay of execution. The Plaintiff was entitled to change her advocate in accordance with the Civil Procedure Rules. The court further found that it was just and appropriate to enforce its earlier judgment regarding the apportionment of surveyor’s costs, as determining the aggregate sizes of the disputed land parcels would benefit all parties, including for the purposes of the pending appeal. The absence of a formal stay order from the Court of Appeal meant that the court’s decree remained enforceable. Accordingly, the court granted the Plaintiff’s application in full.
Court Disposition
Application allowed in full.
Orders
- The firm of TMM Advocates is granted leave to come on record for the Plaintiff in place of Maitai Rimita and Company Advocates.
- The 1st Defendant is directed to contribute his equal share of the surveyor’s costs based on the quote from Canden E. Land Surveyors dated 2/4/2024.
Full Case Text
Judgment text and source record
23 paragraphs
M’Twaruchiu v Wachira & another (Environment & Land Case 2 of 2022) [2024] KEELC 5878 (KLR) (20 August 2024) (Ruling)
Neutral citation: [2024] KEELC 5878 (KLR)
Republic of Kenya
In the Environment and Land Court at Nanyuki
Environment & Land Case 2 of 2022
AK Bor, J
August 20, 2024
Between
Betha Ndumba M’Twaruchiu
Plaintiff
and
Paul Wambugu Wachira
1st Defendant
Mwichwiri Two Farmers Company Limited (Two
2nd Defendant
Ruling
1. The Plaintiff filed the application dated 18/4/2024 seeking to have the firm of TMM Advocates come on record to act for her in place of Maitai Rimita and Company Advocates and for the court to direct the 1st Defendant to contribute his equal share of the surveyor’s costs based on the quote from Canden E. Land Surveyors dated 2/4/2024.
2. The Plaintiff swore the supporting affidavit and referred to the judgment delivered by this court on 13/12/2023 which directed parties to engage a surveyor to determine the aggregate sizes of the parcels of land known as Laikipia Daiga Umande Block 6/396 to 399. The 2nd Defendant was to meet the costs of the surveyor and if it were not able to do so, the Plaintiff and the 1st Defendant were to share the costs equally. The Plaintiff sought to replace her new advocate in place of the previous one based on the fact that the advocate had been in conduct of the matter. She deponed that she had procured a surveyor to conduct the survey of the suit property at the cost of Kshs. 114,000/= but the 1st Defendant was reluctant to ensure compliance with the court decree because he has been in occupation and use of the suit land.
3. The Defendants did not file a response to the application. When the matter came up on 11/6/2024, the 1st Defendant’s advocate informed the court that they had filed an application for stay of execution before the Court of Appeal and were awaiting certification by the Court of Appeal. On 25/6/2024, the court directed parties to file short written submissions on the application. The Plaintiff submitted that the 1st Defendant’s main ground of opposition was that he had filed an appeal before the Court of Appeal and that this court was functus officio.
4. The Plaintiff relied on Order 42 Rule 6(1) of the Civil Procedure Rules to support her contention that an appeal does not operate as a stay of execution unless the court orders otherwise.
5. Should this court grant the orders sought in the application dated 18/4/2024? Having the aggregate sizes of the parcels of land known as Laikipia Daiga Umande Block 6/396 to 399 determined by a surveyor will assist the parties ascertain the actual size of the land in dispute even for purposes of the appeal. It is just and meet to grant the orders sought by the Plaintiff.
6. The court grants the prayers sought in the application dated 18/4/2024.
DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2024. K. BORJUDGEIn the presence of: -Mr. Tyson Mwendwa for the PlaintiffMr. Muia Mwanzia for the 1st Defendant