[2013] KEHC 3495 (KLR)
The court found that the applicant had demonstrated a legitimate concern that the subject matter of the suit (the suit land) could be disposed of or otherwise dealt with in a manner that would render the intended appeal nugatory if stay orders were not granted. The court noted that the plaintiff/respondent admitted...
Source-derived case information.
- Citation
- [2013] KEHC 3495 (KLR)
- Parties
- Plaintiff: Paul Khakina Musungu; Defendant: Pepela Khateli; Defendant: Joseph Chebayi Chesoli
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 102 of 1994
- Procedural Posture
- Civil Case / Ruling on Application for Stay and Injunction Pending Appeal
- Outcome
- Conditional stay of execution granted; status quo to be maintained pending appeal.
- Legal Topics
- Stay of Execution, Injunctions, Status Quo Orders, Appeals, Land Occupation, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Khakina Musungu
Plaintiff
Pepela Khateli
Defendant
Joseph Chebayi Chesoli
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay and Injunction Pending Appeal
Legal Issues
- 1 Whether a temporary injunction and stay of execution pending appeal should be granted to preserve the subject matter of the suit.
- 2 Whether the status quo prior to judgment should be maintained pending the determination of the intended appeal.
- 3 Whether the plaintiff/respondent would suffer prejudice if the orders sought are granted.
Ratio Decidendi
The court found that the applicant had demonstrated a legitimate concern that the subject matter of the suit (the suit land) could be disposed of or otherwise dealt with in a manner that would render the intended appeal nugatory if stay orders were not granted. The court noted that the plaintiff/respondent admitted he did not intend to dispose of the land and that the applicant remained the registered owner while the respondent was in occupation. The court held that maintaining the status quo as it existed before judgment—where the applicant is the registered owner and the respondent is in occupation—would not prejudice the respondent. The court therefore granted a conditional stay of...
Court Disposition
Conditional stay of execution granted; status quo to be maintained pending appeal.
Orders
- Status quo prior to judgment to be maintained: applicant remains registered owner, respondent remains in occupation and user of the land pending determination of the appeal.
- Stay is conditional upon the applicant filing the record of appeal within the stipulated time; otherwise, stay orders are vacated automatically and respondent may execute.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Civil Case 102 of 1994 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
PAUL KHAKINA MUSUNGU ……….......………..……….………….. PLAINTIFF
VERSUS
PEPELA KHATELI ……………..………..…………………… 1ST DEFENDANT
JOSEPH CHEBAYI CHESOLI ………………….…….........… 2ND DEFENDANT
RULING
The 2nd defendant/applicant has in his application dated 24th January 2013 sought the following prayers;
(a).Service of this application be dispensed with in the first instance.
(b).A temporary injunction be issued restraining the plaintiff by himself, his agents and servants from entering the land, ploughing, harvesting trees or disposing of the suit land pending inter partes hearing of this application.
(c).That the status quo obtained before judgment be ordered maintained pending determination of intended appeal.
(d).The plaintiff be ordered arrested and committed to prison for discarding stay orders initially granted by the court.
(e).Costs be provided for.
The motion is based on the grounds on its face and on the affidavit sworn by the
applicant. The motion is opposed and the plaintiff/respondent has filed a replying
affidavit thereto.
According to the replying affidavit at paragraph 6, the plaintiff/respondent states
that he has been in occupation of the suit land even before the commencement of
this suit. At paragraph 9, he states that he has never engaged a purchaser to dispose
of the suit land and the applicant is still registered as owner of this land. They
opposed the application because the orders sought are omnibus and therefore
cannot be granted and finally if the orders sought are granted, he will be greatly
prejudiced.
The application is brought under order 42 Rule 6 (i) of the CP Rules which
basically deal with stay pending appeal and therefore the application is properly
before the court and the technicalities raised by the respondent is disregarded by
this court given backing on the provisions of Art 159 of the Constitution of
Kenya. The provision on sections 63 will not be adjudicated by this court as the
applicant abandoned prayer (d) of the application which sought to have the
respondent arrested for violation of the stay orders given earlier by the trial judge.
It is not disputed from the records and from the bar that the plaintiff/respondent is
in occupation of this land. The applicant has also annexed a notice of appeal filed
on 21st December 2012 demonstrating he is appealing against the judgment
delivered on 20th December 2012 as required by law. The applicant’s worry is
that the respondent may transfer the suit land to himself and dispose of it thus
rendering the appeal nugatory in the event of success. The respondent has
himself admitted in his affidavit that he does not intend to dispose of this land thus
if this court grant stay orders in terms of prayer (c) in the application, he
will suffer no prejudice. Prayer (c) asks for the status quo obtained before
judgment be maintained pending determination of intended appeal. My
interpretation of this status quo and which I order to be maintained is that the
applicant remains as registered owner of suit parcel title Ndivisi/Ndivisi/64 while
the respondent is in occupation and user of it pending the determination of
the appeal. However the stay is conditional to the effect that if the applicant does
not file his record of appeal within the stipulated time, then the stay orders granted
are automatically vacated and the respondent be at liberty to move the court
to execute. Costs shall abide the outcome of the appeal.
RULING DATED, SIGNED, READ AND DELIVEREDin open court this 11th day of February 2013.
A.OMOLLO
JUDGE.
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