[2020] KEELC 3791 (KLR)
The court did not make a final determination on the merits of the application for stay of execution. Instead, it issued directions for the parties to file and exchange written submissions within specified timelines and set a date for further directions. The court recognized the urgency of the matter and adopted the...
Source-derived case information.
- Citation
- [2020] KEELC 3791 (KLR)
- Parties
- Plaintiff: Mutegi Mugwetwa; Defendant: County Ministry of Lands, Physical Planning Energy & ICT County Government of Tharaka Nithi; Defendant: County Government of Tharaka Nithi; Defendant: The Director General (Kenya Urban Rural Authority); Defendant: Kenya Urban Roads Authority; Defendant: The Regional Manager-Upper Eastern (Kenya Urban Roads Authority); Defendant: Territorial Works (K) Ltd; Interested Party: Chuka Igambang’ombe Development Association
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 215 of 2017
- Procedural Posture
- Chamber Summons / Ruling on Interlocutory Application for Stay Pending Appeal
- Outcome
- directions issued for filing and exchange of submissions; no final orders on stay granted at this stage
- Legal Topics
- Stay of Execution, Interlocutory Applications, Appeal Process, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutegi Mugwetwa
Plaintiff
County Ministry of Lands, Physical Planning Energy & ICT County Government of Tharaka Nithi
Defendant
County Government of Tharaka Nithi
Defendant
The Director General (Kenya Urban Rural Authority)
Defendant
Kenya Urban Roads Authority
Defendant
The Regional Manager-Upper Eastern (Kenya Urban Roads Authority)
Defendant
Territorial Works (K) Ltd
Defendant
Chuka Igambang’ombe Development Association
Interested Party
Procedural Posture
Chamber Summons / Ruling on Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment delivered on 4th December, 2019 pending appeal.
- 2 Whether the applicant has demonstrated sufficient grounds for the grant of stay, including risk of irreparable harm and willingness to provide security.
- 3 Whether the application should be heard during the High Court vacation and on an urgent basis.
Ratio Decidendi
The court did not make a final determination on the merits of the application for stay of execution. Instead, it issued directions for the parties to file and exchange written submissions within specified timelines and set a date for further directions. The court recognized the urgency of the matter and adopted the parties' agreement on the mode and timeline for canvassing the application. The ruling is procedural, ensuring that all parties have an opportunity to be heard before a substantive decision is made on the application for stay pending appeal.
Court Disposition
directions issued for filing and exchange of submissions; no final orders on stay granted at this stage
Orders
- The applicant to file written submissions within 7 days.
- The respondents to file written submissions within 7 days after receipt of the applicant's submissions.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 215 OF 2017
FORMERLY MERU ELC. 08 OF 2015
FORMERLY EMBU ELC. 266 OF 2015
MUTEGI MUGWETWA.............................................................................................PLAINTIFF
VERSUS
COUNTY MINISTRY OF LANDS, PHYSICAL PLANNING ENERGY
&ICT COUNTY GOVERNMENT OF THARAKA NITHI........................1ST DEFENDANT
COUNTY GOVERNMENT OF THARAKA NITHI ...................................2ND DEFENDANT
THE DIRECTOR GENERAL
(KENYA URBAN RURAL AUTHORITY)...................................................3RD DEFENDANT
KENYA URBAN ROADS AUTHORITY......................................................4TH DEFENDANT
THE REGIONAL MANAGER-UPPER EASTERN
(KENYA URBAN ROADS AUTHORITY) ..................................................5TH DEFENDANT
TERRITORIAL WORKS (K) LTD................................................................6TH DEFENDANT
AND
CHUKA IGAMBANG’OMBE DEVELOPMENT ASSOCIATION...INTERESTED PARTY
RULING
1. This application which is dated 30th December, 2019 takes the following format:-
CHAMBER SUMMONS
(Under Rule 3 (2) of High Court (Practice and Procedure) Rules and the Judicature Act Cap 8 Laws of Kenya and all other enabling Provisions of Law)
LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the day of 2019, at 9. 00 a.m in the forenoon or so soon thereafter as Counsel for the Plaintiff/Applicant may be heard on an application for ORDERS THAT:-
1. This application be heard ex-parte in the first instance and certified as urgent for hearing during the High Court vacation.
2. The application dated the 30th December 2019 be allowed and admitted for hearing during the current High Court vacation.
3. THAT costs be in the cause.
WHICH APPLICATION is grounded on:-
a) THATthe High court is on Vacation and the Applicant has filed a Notice of Appeal against the entire award of the Honourable issued on 4th December,2019.
b) THATthe Applicant has a high chance of success with his intended appeal and the same will be rendered nugatory if the 2nd Respondents proceed to execute the Judgement of the Court delivered on 4th December,2019 by cutting off a three(3) storey building which is structurally impractical and if implemented by the 2nd Resp0ndent, the same is irreversible.
c) The award of costs to the interested Party in the judgment delivered on 4th December,2019 who enjoined themselves in their own volition is detrimental to the Applicant which costs may be taxed off any time now.
d) There is imminent risk of the 2nd Defendant demolishing the whole three storey building in the process of removing the alleged encroaching portions for the failure of the judgement delivered on 4th December,2019 to give specific metres the Applicant’s building its alleged to have encroached.
e) THATthe Applicant is willing to offer sufficient security in the sum of Kshs.300,000 as a condition for a stay order.
THATit is in the interest of justice and fairness that this Application be allowed as prayed
WHICH APPLICATION IS PREMISEDon the annexed affidavit MURIMI MURANGO and such further or other grounds to be adduced at the hearing thereof.
DATED at NAIROBI this 30th day of December, 2019.
MURIMI MURANGO ESQ.
ADVOCATES FOR THE PLAINTIFF/APPLICANT
2. On 27th January, 2020 the parties agreed to canvass the application by way of written submissions with the applicant doing so within 7 days of today and the respondents doing so within 7 days after receipt of the applicant’s written submissions. This is adopted as an order of this court.
3. Mr. Rono, the Interested Party’s advocate is granted 3 days to respond to the application and also 7 days to file his written submissions within 7 days after receipt of the applicant’s written submissions.
4. The parties will come to court to take directions on 17th February, 2020.
Delivered in open Court at Chuka this 27th day of January, 2020 in the presence of:
CA: Ndegwa
Murimi Murango for the plaintiff
Murango Mwenda for 1st and 2nd defendants
Murango Mwenda h/b Rono for the Interested Party
P. M. NJOROGE,
JUDGE.