[2023] KEELC 22114 (KLR)
The court found that although the decree of the lower court had already been executed and a new title issued to a third party, the respondent had undertaken not to evict the applicant and acknowledged that all parties are beneficiaries of the estate to which the land belongs. The court considered the need to...
Source-derived case information.
- Citation
- [2023] KEELC 22114 (KLR)
- Parties
- Applicant: Hellen Kemuma Ondieki; Respondent: Detan Anyanza Ondieki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E005 of 2023
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution is disposed of by ordering preservation of the current title status pending succession proceedings.
- Judges
- JM Kamau
- Legal Topics
- Stay of Execution, Title Cancellation, Appeal Procedure, Succession and Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hellen Kemuma Ondieki
Applicant
Detan Anyanza Ondieki
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the judgment cancelling land titles should be granted pending appeal.
- 2 Whether the applicant will suffer irreparable harm if the stay is not granted.
- 3 Whether the respondent's undertaking not to evict the applicant is sufficient protection.
Ratio Decidendi
The court found that although the decree of the lower court had already been executed and a new title issued to a third party, the respondent had undertaken not to evict the applicant and acknowledged that all parties are beneficiaries of the estate to which the land belongs. The court considered the need to preserve the status quo and prevent further prejudice to the parties pending the determination of succession proceedings. Accordingly, the court ordered that the land remain in the name of Ebrahim Ondieki Nyamoibi until further orders are issued by the succession court, effectively maintaining the current position and deferring substantive resolution to the appropriate forum for...
Court Disposition
Application for stay of execution is disposed of by ordering preservation of the current title status pending succession proceedings.
Orders
- The land remains in the name of Ebrahim Ondieki Nyamoibi until further orders by the succession court.
Full Case Text
Judgment text and source record
21 paragraphs
Ondieki v Ondieki (Environment and Land Appeal E005 of 2023) [2023] KEELC 22114 (KLR) (6 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22114 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment and Land Appeal E005 of 2023
JM Kamau, J
December 6, 2023
Between
Hellen Kemuma Ondieki
Plaintiff
and
Detan Anyanza Ondieki
Defendant
Ruling
1. Under Certificate of Urgency, the applicant Hellen Kemuma Ondieki moved this court on 4/10/2023 with an application dated 28/9/2023 for orders that: -1. Spent.
2. There be a stay of execution of the Judgment delivered on 7/9/2023 in Nyamira CMCC land case No. E025 of 2022 pending the Hearing and Determination of this Appeal.
2. The grounds upon which the Appeal is anchored are that the Lower Court (Honourable W.C. Waswa Senior Resident Magistrate) ordered the cancellation of Titles in respect of East Kitutu/kebirichi/3627, 3628 and 3629. The Applicant was dissatisfied with the Decision of the Lower Court and therefore intends to Appeal against the Judgment and she fears that should she succeed in the said Appeal and execution will have been carried out before then, the said Appeal would be rendered nugatory. She pleads with this court that the stay is granted and even assures this court that the Application is made in good faith and the same is not meant to deny the Respondent from enjoying the fruits of the Judgment.
3. On the other hand, the respondent opposed the Application and towards that end he swore an Affidavit on 11/10/2023 which he filed in court on 16/10/2023. He says that the Decree of the Lower Court issued on 13/9/2023 has already been complied with and a new Title issued to the respondent, a copy of which he has attached to his replying affidavit. A copy of the same is exhibited in court and now reads the name of Ebrahim Ondieki Nyamoibi of Identity Card Number 0996948 and of P.O. Box 320, Keroka. He has been registered the proprietor of the land. A Title Deed was issued to Nyamoibi on 26/9/2023 a person who is not a party in this Appeal nor in the Lower Court.
4. The respondent has given his undertaking that the applicant shall not be evicted from the suit land since all the parties herein are beneficiaries of the Estate that the suit land is part of. The issues remaining is that of acquiring Letters of Administration of the Estate with this assurance.
5. I really hope that the respondent herein keeps his word. there is therefore good will for the respondent and I order that the land remains in the name of Ebrahim Ondieki Nyamoibi until further Orders are given by the succession Court. I will say no more.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 6TH DAY OF DECEMBER, 2023MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: - BrendaMr. Mochama for the AppellantMr. Omwenga for the Respondents