[2017] KEELC 1230 (KLR)
The court found that, given the respondent had filed an appeal and provided evidence of the same, executing the judgment at this stage could render the appeal nugatory if the respondent were to succeed. The court considered the affidavits and evidence, including the certificate of delay and memorandum of appeal, and...
Source-derived case information.
- Citation
- [2017] KEELC 1230 (KLR)
- Parties
- Applicant: Peter Muriithi Gichohi; Respondent: Richard Wambugu Gichohi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 105 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application for Enforcement and Stay of Execution
- Outcome
- Application declined; execution of judgment stayed pending appeal.
- Judges
- L Waithaka
- Legal Topics
- Enforcement of Judgment, Stay of Execution, Transfer of Land Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Muriithi Gichohi
Applicant
Richard Wambugu Gichohi
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Enforcement and Stay of Execution
Legal Issues
- 1 Whether the court should enforce its judgment by authorizing the Deputy Registrar to execute transfer documents for the suit property.
- 2 Whether execution of the decree should be stayed pending the hearing and determination of the respondent's appeal.
Ratio Decidendi
The court found that, given the respondent had filed an appeal and provided evidence of the same, executing the judgment at this stage could render the appeal nugatory if the respondent were to succeed. The court considered the affidavits and evidence, including the certificate of delay and memorandum of appeal, and determined that the interests of justice required a stay of execution of its earlier judgment pending the outcome of the appeal. Accordingly, the application for enforcement was declined and execution stayed.
Court Disposition
Application declined; execution of judgment stayed pending appeal.
Orders
- Execution of the judgment delivered on 26th April, 2016 is stayed pending the hearing and determination of the appeal.
- The application for enforcement is declined.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC CASE NO. 105 OF 2014
PETER MURIITHI GICHOHI ......................... PLAINTIFF/APPLICANT
-VERSUS-
RICHARD WAMBUGU GICHOHI ..... DEFENDANT/RESPONDENT
RULING
1. The notice of motion dated 3rd March, 2017 seeks to enforce the judgment of this court delivered on 26th April, 2016. Vide that judgment, this court allowed the applicant’s suit and issued an order compelling the defendant to surrender the title deed forDaiga/ Umande/Block 2/2139(hereinafter referred to as the suit property) to the Land Registrar Laikipia for cancellation.
2. The motion is premised on the ground that since the respondent has failed, refused and/or ignored to execute the decree despite many requests by the applicant, this court should grant him the following orders:
(a) That the Deputy Regsitrar of this Honourable Court be authorised to execute all documents requisite to effectuate the transfer of the parcel of land L.R. No. Daiga/Umande Block 2/2139 in favour of the applicant.
(b) That the Land Regitrar, Laikipia Country, be directed to dispense with the production of the title deed to the parcel of Land L. R. Daiga/Umande Block 2/2139 to effectuate the decree herein.
(c) That costs be provided for.
3. The application is opposed. In his replying affidavit sworn on 22nd March 2017, the 1st respondent
Richard Joe Wambugu deposes that on 19th September, 2016 he filed an appeal No. 54 of 2016 against the judgement. It is his contention that if the orders sought are granted, his appeal will be rendered nugatory. He prays that execution of the decree be stayed pending the hearing and determination of the appeal.
4. When the matter came up for hearing on 23rd May 2017, the applicant chose to rely on the grounds on the face of his application and his supporting affidavit sworn on 3rd March, 2017.
5. The respondent also relied on his replying affidavit sworn on 22nd March, 2017 and on the annexutres, for example, certified copies of proceedings and Judgment supplied to him on 23rd August, 2016. Upon perusal of the court record, I also came across a certificate of delay by the Deputy Registrar and a Memoramdum of Appeal.
6. I have considered affidavits and evidence tendered. In the circumstances of this case, i find it necessary to stay the Judgment of this court delivered on 26th April, 2016 pending the hearing and determination of the appeal as failure to do so may render the appeal nugatory if the 1st respondent is successful.
7. For the reasons given, l decline to allow the application and order that execution be stayed pending the hearing and determination of the appeal.
Dated, Signed and Delivered in open court at Nyeri this 17th day of October, 2017.
L N WAITHAKA
JUDGE
In the presence of:
N/A by applicant
N/A by respondent
Court assisant - Esther