[2017] KEELC 3481 (KLR)
The court found that the parties had agreed to the registration of an inhibition against the suit property, and this agreement was adopted as an order of the court to preserve the subject matter. The court dismissed the prayer for stay of execution as it was not canvassed by the applicant, and similarly dismissed...
Source-derived case information.
- Citation
- [2017] KEELC 3481 (KLR)
- Parties
- Appellant: Nicholus Munene Murithi; Respondent: Lidya Kageni Njoka; Interested Party: Evans Gitonga Borana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay, Inhibition, and Joinder
- Outcome
- Application partly allowed by consent; inhibition order granted; other prayers dismissed.
- Legal Topics
- Stay of Execution, Inhibition Orders, Joinder of Parties, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholus Munene Murithi
Appellant
Lidya Kageni Njoka
Respondent
Evans Gitonga Borana
Interested Party
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay, Inhibition, and Joinder
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decree dated 29th June, 2016 pending appeal.
- 2 Whether an order of inhibition should be issued to preserve the suit property.
- 3 Whether the interested party should be enjoined in the proceedings.
Ratio Decidendi
The court found that the parties had agreed to the registration of an inhibition against the suit property, and this agreement was adopted as an order of the court to preserve the subject matter. The court dismissed the prayer for stay of execution as it was not canvassed by the applicant, and similarly dismissed the prayers for joinder of the interested party and costs. The court directed the appellant to have the inhibition registered and encouraged the parties to effect transfer of the specified portion of land as previously ordered in the judgment. The court exercised its discretion in line with the parties' agreement and the need to preserve the property pending appeal, but declined...
Court Disposition
Application partly allowed by consent; inhibition order granted; other prayers dismissed.
Orders
- An order of inhibition to be registered against KARINGANI/MUGIRIRWA/3681 for preservation of the subject matter.
- Appellant to have inhibition placed against Land No.3681 KARINGANI/MUGIRIRWA.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 09 OF 2017
FORMERLY MERU CIVIL APPEAL NO. 27 OF 2016
NICHOLUS MUNENE MURITHI……………………………..APPELLANT
VERSUS
LIDYA KAGENI NJOKA………………………………...………RESPONDENT
EVANS GITONGA BORANA……………………………INTERESTED PARTY
RULING
1. This application is dated 27th July, 2016 and seeks orders:
1. That this application be certified as very urgent and the same be heard as a matter of priority.
2. That the honourable court be pleased to order stay of execution of the judgment and decree dated 29th June, 2016 pending the hearing and determination of this application.
3. That this honourable court be pleased to allow the applicant herein to enjoin one EVANS GITONGA BORANA as an interested party.
4. That this honourable court be pleased to issue an order of inhibition restricting any kind of dealings over LR NO.2158 KARINGANI/MUGIRIRWA for purposes of preserving the suit parcel pending the hearing and determination of this matter.
5. That the honourable court be pleased to order stay of execution of the judgment and decree dated 29th June, 2016 pending the hearing and determination of this appeal.
6. That costs for and incidental to this application be borne by the respondent.
2. The application is supported by the supporting affidavit of NICHOLAS MUNENE MURITHIand has the following grounds:
i) That if the stay is not granted, the appellant shall be evicted rending (sic) the appeal nugatory and useless.
ii) That the respondent shall not suffer any prejudice since the appellant has occupied L.R. No.2158 KARINGANI/MUGIRIRWA for well (sic) since he was born.
iii) That I am an orphan who is striving for survival and my aunt the respondent herein and my uncle EVANS GITONGA BORANA have planned to deprive me of my rights.
iv) That the appellant will suffer irreparable harm and damage if the stay is not granted as he will be evicted from his land before he exhausts all legal avenues.
3. The parties have agreed that:-
i) An order of inhibition be registered against KARINGANI/MUGIRIRWA/3681 for preservation of the subject matter.
ii) This agreement is adopted as an order of this court.
4. The appellant is directed to have an inhibition placed against Land No.3681 KARINGANI/MUGIRIRWA.
5. The applicant has not canvassed prayer 2. It is dismissed.
6. Prayers 3, 4 and 6 are dismissed.
7. Costs shall be in the cause.
8. It is so ordered.
9. Parties encouraged to effect transfer of 0. 12 Hectares within 30 days to the appellant by DAVID KINYUA as ordered by the Judgment of Hon. A.G. Kibiru, SPM, on 29. 6.2016.
10. Directions on 6. 4.2017.
Delivered in open court at Chuka this 7th day of March, 2017 in the presence of:
CA: Ndegwa
Nicholas Munene for the Appellant
Njeru Ithiga for the Respondent
P.M NJOROGE
JUDG