[2015] KEELC 305 (KLR)
The court found that the orders issued by the magistrate in the lower court were intended to preserve the suit property pending the hearing and determination of the main suit. The appellants/applicants did not demonstrate sufficient grounds to warrant the stay or setting aside of those orders. The court held that...
Source-derived case information.
- Citation
- [2015] KEELC 305 (KLR)
- Parties
- Appellant: Obadiah Mwiti Laban; Appellant: Mary Rimaa M’Mugambi; Respondent: Caroline Ndumba Francis
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 18 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay of Execution and Setting Aside of Magistrate's Orders
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Appeals From Magistrates Courts, Preservation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obadiah Mwiti Laban
Appellant
Mary Rimaa M’Mugambi
Appellant
Caroline Ndumba Francis
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay of Execution and Setting Aside of Magistrate's Orders
Legal Issues
- 1 Whether the appellants/applicants have demonstrated sufficient grounds for stay of execution of the magistrate's orders pending appeal.
- 2 Whether the orders of injunction and inhibition issued by the magistrate should be set aside, varied, or discharged.
- 3 Whether substantial loss would occur to the appellants/applicants if the orders sought are not granted.
Ratio Decidendi
The court found that the orders issued by the magistrate in the lower court were intended to preserve the suit property pending the hearing and determination of the main suit. The appellants/applicants did not demonstrate sufficient grounds to warrant the stay or setting aside of those orders. The court held that the preservation of the property was necessary to avoid rendering the suit nugatory and to maintain the status quo. Consequently, the application for stay and setting aside of the magistrate's orders was dismissed, with costs to be in the cause.
Court Disposition
application dismissed
Orders
- The application dated 22nd May, 2015 is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMEN T & LAND COURT
AT MERU
CIVIL APPEAL NO 18 OF 2015
OBADIAH MWITI LABAN..............................1ST APPELLANT/APPLICANT
MARY RIMAA M’MUGAMBI............................2ND APPELLAN/APPLICANT
VERSUS
CAROLINE NDUMBA FRANCIS............................................RESPONDENT
R U L I N G
This application is dated 22nd May, 2015 and seeks Orders that:-
1. The application be certified urgent and in view of its urgency, the same be admitted to hearing on priority basis and exparte in the first instance.
2. The Honourable Court be pleased to call for the original record of proceedings in Nkubu P.M.C.C No. 33 of 2014.
3. The Honourable Court be pleased to stay implementation and or operation of the temporary Orders of injunction and inhibition made by the Honourable Senior Resident Magistrate in Nkubu Principal Magistrate’s Civil case No.33 of 2014 and any proceedings therein pending hearing and determination of the application interpartes.
4. The Honourable Court be pleased to stay implementation and or operation of the temporary Orders of Injunction and Inhibition made by the Honourable Senior Resident Magistrate Nkubu in Principal Magistrate’s Civil Case No.33 of 2014 and any further proceedings pending hearing and determination of the Civil Appeal No.18 of 2015 pending before the E & L Court at Meru.
IN THE ALTERNATIVE
5. Costs of the motion be paid to the applicants/appellants by the respondent.
6. The Honourable Court be pleased to altogether , set aside, vary and or discharge the orders made by the Honourable Senior Resident Magistrate-Nkubu on 13th May, 2015 in Nkubu Principal Magistrate’s Civil case No. 33 of 2014.
The application is supported by the affidavit of Mary Rimaa M’Mugambi and has the following grounds:-
a.That the appellant’s/applicant’s appeal herein is arguable and has overwhelming chances of success.
b.That substantial loss is likely to occur to the appellants/applicants unless the Orders sought herein are made.
c.That the 2nd applicant/appellant is at the verge of being evicted from her land pursuant to the orders granted forthwith.
d.That the appellants’/applicants’ otherwise promising appeal and indeed their instant application are likely to be rendered nugatory and useless unless the orders pleaded for herein are immediately granted.
e.That it is the interest of justice that the orders sought be granted.
I have perused the pleadings and the submissions filed by the parties.I have came to the conclusion that the Orders issued by the Learned Senior Resident Magistrate’s Civil case No. 33 of 214 are meant to preserve the suit property pending hearing and determination of the apposite suit. In the circumstances, I dismiss the Appellants/Applicants application dated 22nd May, 2015.
Costs shall be in the cause.
Delivered in open Court at Meru this 1st day of July, 2015 in the presence of:
CC: Daniel/Lilian
Kiogora h/b Ndubi for Appellants /Applicants
Carlpeters Mbaabu for Respondent.
P.M. NJOROGE
JUDGE