[2025] KEELC 1029 (KLR)
The court found that an order for stay of execution had already been granted and that the respondent failed to provide a convincing explanation as to how the application for stay had been overtaken by events. The court exercised its discretion to allow the application for stay of execution, considering the need to...
Source-derived case information.
- Citation
- [2025] KEELC 1029 (KLR)
- Parties
- Appellant: Zipporah Nkuen; Respondent: John Mburu Gitonga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E027 of 2024
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- LN Mbugua
- Legal Topics
- Stay of Execution, Appeal Procedure, Proprietary Rights, Eviction, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah Nkuen
Appellant
John Mburu Gitonga
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the lower court judgment pending appeal.
- 2 Whether the respondent's occupation of the suit land renders the application for stay of execution moot.
Ratio Decidendi
The court found that an order for stay of execution had already been granted and that the respondent failed to provide a convincing explanation as to how the application for stay had been overtaken by events. The court exercised its discretion to allow the application for stay of execution, considering the need to balance the interests of both parties and to preserve the subject matter of the appeal until its determination. The stay was granted for a defined period, pending the outcome of the appeal.
Court Disposition
Application for stay of execution allowed.
Orders
- The application dated November 21, 2024 for stay of execution is allowed up to October 28, 2025.
- Costs of the application shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
Nkuen v Gitonga (Environment and Land Appeal E027 of 2024) [2025] KEELC 1029 (KLR) (4 March 2025) (Ruling)
Neutral citation: [2025] KEELC 1029 (KLR)
Republic of Kenya
In the Environment and Land Court at Nanyuki
Environment and Land Appeal E027 of 2024
LN Mbugua, J
March 4, 2025
Between
Zipporah Nkuen
Appellant
and
John Mburu Gitonga
Respondent
Ruling
1. Before me is the appellant’s notice of motion application dated 21/11/2024 seeking a stay of execution of the lower court judgment delivered on 2/10/2024 in CM ELC No. 26 of 2020.
2. The applicant/appellant who was the defendant in the lower court contends that she was dissatisfied with the said judgment and has duly filed a memorandum of appeal. She avers that she had been living on the suit property and she stands to suffer irreparable loss if she is evicted from the suit land.
3. In opposition thereof, the respondent who was the plaintiff in the lower court filed a replying affidavit dated 17/2/2025 where he contends that he is the legal owner of the suit plot and that the persistent occupation of the said land by the appellant contravenes his proprietary rights as enshrined in the constitution of Kenya.
4. At paragraph 7 of the replying affidavit the respondent avers that the application has been overtaken by events as he is now in occupation of the suit land pursuant to the court order.
5. To grant or not got grant a stay of the execution of the lower court judgment is the issue for determination. To this end, the court makes reference to the provisions of Order 42 rule 6 of the Civil Procedure Rules. The court has discretion to grant or to refuse an application for stay of execution pending appeal whereby the court has to balance the interest of the protagonists. Halai & another v Thornton T Rupin (1963) Ltd (1990) eKLR.
6. A perusal of the record reveals that an order of stay of execution of the judgment was given by this court way back on 25/11/2024. The respondent has not given any tangible account as to how the application could have been overtaken by events yet there was an order for stay of execution. In that regard, and in order to expedite the matter. This court allows the application dated November 21, 2024 for a period running up to October 28, 2025 (a year from when the appeal was filed). The costs thereof shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED AT NANYUKI THIS 4TH DAY OF MARCH, 2025 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Ms. Wangu for RespondentChweya for AppellantCourt Assistant: Nancy Mwangi