[2019] KEELC 447 (KLR)
The court found that the applicant had demonstrated sufficient cause for the grant of a conditional stay of execution of the trial court's judgment, pending the hearing and determination of the appeal. The stay was granted on the express condition that the applicant deposits Kshs. 500,000 as security within 14 days,...
Source-derived case information.
- Citation
- [2019] KEELC 447 (KLR)
- Parties
- Appellant: M’Twiga Bore; Respondent: Eliphas Kithinji Bore
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 10 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal, subject to deposit of security.
- Legal Topics
- Stay of Execution, Security for Costs, Eviction Orders, Injunctions, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Twiga Bore
Appellant
Eliphas Kithinji Bore
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the trial court's judgment pending appeal.
- 2 Whether the applicant should be required to provide security for the grant of stay.
- 3 Whether the orders sought would prejudice any party.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the grant of a conditional stay of execution of the trial court's judgment, pending the hearing and determination of the appeal. The stay was granted on the express condition that the applicant deposits Kshs. 500,000 as security within 14 days, failing which the stay would lapse automatically. The court balanced the interests of both parties, ensuring that the respondent's rights were protected by the requirement for security, while also preserving the applicant's right to appeal without suffering immediate eviction or enforcement of the judgment. The court further directed the applicant to file and serve the record...
Court Disposition
Conditional stay of execution granted pending appeal, subject to deposit of security.
Orders
- Prayer 2 in the application for stay of execution is granted on condition that the applicant deposits Kshs. 500,000 with court as security within 14 days, failing which the stay lapses.
- The applicant to file and serve a record of appeal within 14 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT CHUKA
CHUKA ELC CIVIL APEAL CASE NO. 10 OF 2019
M’TWIGA BORE.............................................................................APPELLANT
VERSUS
ELIPHAS KITHINJI BORE.......................................................RESPONDENT
RULING
1. This application seeks the following orders:-
1. That the instant application be certified urgent and the same be heard on priority basis.
2. That the court be pleased to order and/or direct that the execution of judgment issued by the trial court on 21st August, 2019 be stayed pending hearing and determination of the application.
3. Cost of this application be provided for.
2. The application is supported by the affidavit of the applicant/intended appellant sworn on 21st October, 2019. It has the following grounds:
a) That the full hearing and determination of civil case no. 139 of 2016, judgment was delivered on 21st August, 2019.
b) That the appellant herein was directed to give vacant possession to the respondent herein on land parcel No. Mwimbi/N. Mugumango/1964 within the next 90 days in default the trial court shall issue eviction orders against the defendants.
c) That the trial court issued a permanent injunction orders against the appellant herein, by himself, family members, agents, assigns or any other person acting at his behest restraining them from further interference whatsoever with the respondent’s land parcel Mwimbi/N. Mugumango/1964.
d) That the trial court further ordered that the cost of the suit be borne by the appellant herein.
e) That land parcel No. Mwimbi/N. Mugumango/1964 was hived from the estate of the late Bore Rugie (deceased).
f) That the appellant herein was aggrieved entirely by the judgment of the trial court.
g) That the appellant herein has beneficial interest to the suit land.
h) The orders sought are the best and most apt in the circumstances.
i) No party stands to be prejudiced in the event the orders sought are granted.
3. The application was heard interpartes on 26th November, 2019. The applicant asked the court to stay the lower court’s judgment in terms of prayer 2 in the application. The respondent opposed the application and told the court that the applicant who was his brother was merely greedy as he had his own land.
4. Upon hearing the parties the following directions/orders are issued:-
a) Prayer 2 in the application is granted on condition that the applicant/intended appellant deposits with court as security the sum of Kshs.500,000/= only within 14 days of today FAILING which this conditional stay will automatically lapse.
b) The applicant/intended appellant to file and serve a record of appeal within 14 days of today.
c) Parties will come to court for directions on 11th December, 2019.
Delivered in open Court at Chuka this 26th day of November, 2019 in the presence of:
CA: Ndegwa
M’Twiga Bore – Applicant
Eliphas Kithinji Bore - Respondent
P. M. NJOROGE,
JUDGE.