[2019] KEELC 1496 (KLR)
The court adopted the parties' consent to dispose of the application by written submissions and to maintain the status quo on the ground pending the hearing of the application. The court further issued directions for the filing of responses and submissions, and adopted the consent as an order of the court. The...
Source-derived case information.
- Citation
- [2019] KEELC 1496 (KLR)
- Parties
- Appellant: Patrick Kithaka Borici; Appellant: Misheck Mwaniki Njeru; Respondent: Shadrack Nyaga Njeru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 8 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Interim orders granted by consent; status quo to be maintained pending hearing of the application for stay of execution.
- Legal Topics
- Stay of Execution, Eviction Orders, Status Quo Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kithaka Borici
Appellant
Misheck Mwaniki Njeru
Appellant
Shadrack Nyaga Njeru
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution of the judgment pending determination of the appeal.
- 2 Whether the appellants will suffer substantial loss if the stay is not granted.
- 3 Whether the application for stay was brought without unreasonable delay.
Ratio Decidendi
The court adopted the parties' consent to dispose of the application by written submissions and to maintain the status quo on the ground pending the hearing of the application. The court further issued directions for the filing of responses and submissions, and adopted the consent as an order of the court. The operative reasoning is that, in the interest of justice and by agreement of the parties, the status quo should be preserved to prevent the appeal from being rendered nugatory and to avoid substantial loss to the appellants pending the determination of the stay application.
Court Disposition
Interim orders granted by consent; status quo to be maintained pending hearing of the application for stay of execution.
Orders
- The application dated 1st October, 2019 to be disposed of by written submissions.
- Status quo prevailing on the ground to be maintained pending hearing of the application.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 08 OF 2019
PATRICK KITHAKA BORICI.......................................................1ST APPELLANT
MISHECK MWANIKI NJERU......................................................2ND APPELLANT
VERSUS
SHADRACK NYAGA NJERU.............................................................RESPONDENT
RULING
1. This application is dated 1st October, 2019 and seeks orders:
1. That this application be certified as urgent and heard ex-parte in the first instance.
2. That pending the hearing and determination of the application inter-parties, there be a stay of execution of judgment delivered by the honourable court at Chuka in Civil Case No. 127 of 2014 on 24thJuly, 2018 and all consequential orders.
3. That pending the hearing and determination of this appeal there be a stay of execution of the judgment delivered by the honourable court at Chuka in Civil case No. 127 of 2014 on 24thJuly, 2018 and all consequential orders.
2. The application is supported by the affidavit of the 1st Applicant, Patrick Kithaka Borici sworn on 1st October, 2019 and has the following grounds:
a) The appellants/applicants have filed the appeal herein after being aggrieved by the judgment delivered against them in Chuka Civil Case NO. 127 of 2014 where the appellants were some of the defendants and the respondent was the plaintiff in the said suit.
b) That the honourable court gave judgment against the appellants/applicants that the appellants do move out of the suit land as indicated in the sketch map of LDT IGA/01/04 tribunal case or in default they be forcibly evicted with their property and possessions, eviction against the appellants from the suit property be effected on or after the expiry of a period of 3 months from the date hereof and that the plaintiff shall have the costs of the suit and interest.
c) The appellants/ applicants will suffer substantial loss and damage if the judgment delivered on the 24th July, 2018 is executed before the appeal is heard and determined as they will be evicted from their land parcels which neighbours the respondent’s land parcel after the lapse of 3 months from the date of judgment.
d) That this appeal shall be rendered nugatory if the judgment delivered on the 24th July, 2019 is not stayed.
e) That this application has been brought without unreasonable delay.
3. On 8th October, 2019 the parties proffered a consent in the following terms:
BY CONSENT
a) The application dated 1st October, 2019 be disposed off by way of written submissions.
b) The status quo prevailing on the ground be maintained pending the hearing of the application.
Muthoni Ndeke
Advocate for applicants
8. 10. 2019
Matunda Nimrod
Advocate for the respondent
8. 10. 2019
4. The consent was signed by the advocates representing the parties.
5. The following orders were also issued:
1. The respondent was granted 7 days to respond to the application and the applicants were granted 7 days, after receipt of the respondent’s response(s), to further respond.
2. Consent granting maintenance of status quo until hearing of this application is adopted as an order of this court.
3. Upon expiry of 14 days of today, parties to simultaneously file their written submissions.
4. Parties will come to court for directions on 11th November, 2019.
Delivered in open Court at Chuka this 8th day of October, 2019 in the presence of:
CA: Ndegwa
M/s Muthoni for the Applicants
Matunda for the Respondent
P. M . NJOROGE,
JUDGE.