[2022] KEELC 15128 (KLR)
The court found that the applicants had filed a notice of appeal, satisfying the requirement for an existing appeal. The applicants demonstrated that they would suffer substantial loss if the stay was not granted, as the respondent had issued notices to tenants to vacate the premises, potentially rendering the...
Source-derived case information.
- Citation
- [2022] KEELC 15128 (KLR)
- Parties
- Plaintiff: Paul Rugi Mukuha; Plaintiff: Stephen Wachira Chutha; Plaintiff: Simon Kinyingi Gachoka; Plaintiff: Stephen Waithaka Gikonyo; Defendant: Loyce Kurgat
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 175 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted with conditions.
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Procedure, Substantial Loss, Delay in Filing, Possession of Premises
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Rugi Mukuha
Plaintiff
Stephen Wachira Chutha
Plaintiff
Simon Kinyingi Gachoka
Plaintiff
Stephen Waithaka Gikonyo
Plaintiff
Loyce Kurgat
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 and decree pending appeal.
- 2 Whether the applicants will suffer substantial loss if the stay is not granted.
- 3 Whether there was inordinate delay in filing the application for stay.
Ratio Decidendi
The court found that the applicants had filed a notice of appeal, satisfying the requirement for an existing appeal. The applicants demonstrated that they would suffer substantial loss if the stay was not granted, as the respondent had issued notices to tenants to vacate the premises, potentially rendering the appeal nugatory. The delay of four and a half months in filing the application was not considered inordinate. The court further held that, given the respondent had never been in possession of the premises, security for costs was appropriate. Accordingly, the court granted a stay of execution of the judgment and decree on condition that the applicants file and serve their record of...
Court Disposition
Application for stay of execution granted with conditions.
Orders
- A stay of execution of judgment and decree is granted pending appeal, on condition that the applicants file and serve their record of appeal and deposit Kshs 100,000 as security for costs in a joint interest-earning account within 60 days.
- If the applicants fail to comply with the conditions within 60 days, the stay order shall automatically lapse and be deemed vacated.
Full Case Text
Judgment text and source record
26 paragraphs
Mukuha & 3 others v Kurgat (Environment & Land Case 175 of 2017) [2022] KEELC 15128 (KLR) (5 December 2022) (Ruling)
Neutral citation: [2022] KEELC 15128 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment & Land Case 175 of 2017
FM Njoroge, J
December 5, 2022
Between
Paul Rugi Mukuha
1st Plaintiff
Stephen Wachira Chutha
2nd Plaintiff
Simon Kinyingi Gachoka
3rd Plaintiff
Stephen Waithaka Gikonyo
4th Plaintiff
and
Loyce Kurgat
Defendant
Ruling
1. The motion dated July 7, 2022 seeks a stay of execution of the decree pending the determination of the appeal against the judgment of this court delivered on February 28, 2022. I have noted that there is a notice of appeal that was filed on March 15, 2022 by the applicants and therefore I deem it that there is an appeal in existence as required by the provision of order 42 rule 6 (4) of the Civil Procedure Rules.
2. The next factor to consider is whether the substantial loss may result to the applicants unless the order of stay is issued by this court. In their application the applicants have averred that the respondent has already issued the tenants occupying the suit premises 14 days’ notice with effect from July 1, 2022 to vacate, and they may suffer irreparable loss and the appeal may be rendered nugatory and I agree with then on that issue entirely.
3. Concerning whether there was inordinate delay in the filing of the application, I note that the judgment was delivered on February 28, 2022 while the instant application was filed on July 13, 2022. That is after a period of about four and a half months which I think is not inordinate.
4. Regarding security, I am of the view that all cases ought to be taken consideration of with due regard to the specific circumstances of each case. In the present case the respondent has been said to have not ever had possession of the premises, a fact she does not deny. I think this is a case in which security for costs can be furnished.
5. I find that the application dated July 7, 2022 has merit and I grant prayer No 1 thereof, that is, a stay of execution of judgment and decree in the instant case on condition that the applicants shall file and serve their record of appeal and also, that they shall deposit Kshs 100,000/= as security for costs in an interest earning account opened in the joint names of both counsel’s advocates in a reputable bank within 60 days of this order, in default of which the stay order hereby issued shall automatically lapse and be deemed to be vacated.
DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 5TH DAY OF DECEMBER, 2022. MWANGI NJOROGEJUDGE, ELC, NAKURU