[2020] KEELC 1536 (KLR)
The court found that the applicant had filed a notice of appeal promptly and demonstrated, through affidavit evidence, that he may suffer irreparable harm if evicted before the appeal is concluded. The court was satisfied that the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules...
Source-derived case information.
- Citation
- [2020] KEELC 1536 (KLR)
- Parties
- Plaintiff: Patrick Toroino Mitingi (Suing as the administrator of the Estate of Toroino Mitingi); Defendant: The County Government of West Pokot
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 142 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed.
- Legal Topics
- Stay of Execution, Appeals, Irreparable Harm, Eviction, Judgment Enforcement
- 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
Patrick Toroino Mitingi (Suing as the administrator of the Estate of Toroino Mitingi)
Plaintiff
The County Government of West Pokot
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution of the judgment pending appeal.
- 2 Whether the applicant has demonstrated that he will suffer substantial loss if the stay is not granted.
- 3 Whether the application meets the requirements under Order 42 Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant had filed a notice of appeal promptly and demonstrated, through affidavit evidence, that he may suffer irreparable harm if evicted before the appeal is concluded. The court was satisfied that the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules had been met, particularly the risk of substantial loss. The absence of opposition from the respondent further supported the grant of the stay. Consequently, the court exercised its discretion to grant the stay of execution pending the hearing and determination of the intended appeal, with costs to be in the appeal.
Court Disposition
Application for stay of execution pending appeal allowed.
Orders
- Prayer no. 2 of the application is granted: stay of execution of the judgment pending hearing and determination of the intended appeal.
- Costs of the application shall be costs in the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC CASE NO. 142 OF 2014
PATRICK TOROINO MITINGI
(Suing as the administrator of the Estate of
TOROINO MITINGI.................................PLAINTIFF
VERSUS
THE COUNTY GOVERNMENT
OF WEST POKOT.................................DEFENDANT
RULING
1. In this suit, the plaintiff brought an application dated 23/3/2020 under Section 3 & 3A of the Civil Procedure Act, Order 42 Rule 6 sub rules 1, 2, 3, 4, 5 and 6 of the Civil Procedure Rules.He seeks the following orders:-
(1) …spent
(2) That this honourable court be pleased to issue orders of stay of execution of this court’s judgment pending hearing and determination of the plaintiff’s intended appeal to the Court of Appeal.
(3) …spent
(4) That costs of this application provided for.
2. The application is supported by an affidavit of the applicant dated 23/3/2020 The grounds upon which the application is made are that a notice of appeal has been filed; that the plaintiff’s intended appeal raises substantial issues of law; that the plaintiff will suffer substantial loss if the orders sought are not granted and that it is in the interest of justice that the orders sought be granted. The application is not opposed. There is a notice of appeal filed in the court record on 4/3/2020, a day after the judgment was delivered.
3. I have perused the supporting affidavit and found that there is sufficient evidence that the applicant may indeed suffer irreparable harm if he is evicted before the appeal is concluded. I therefore grant prayer no 2 of the application. The costs of the application shall be costs in the appeal.
Dated, signed and Delivered at Kitale via electronic mail on this 23rd day of July, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.