[2022] KEELC 515 (KLR)
The court found that the applicants had already litigated the issues in ELC 93 of 2015, where judgment was delivered dismissing their suit and granting a stay of execution for forty-five days. The applicants' subsequent filing of the present application, while an appeal and application for stay are pending in the...
Source-derived case information.
- Citation
- [2022] KEELC 515 (KLR)
- Parties
- Applicant: Peter Thuo Kamau; Applicant: Grace Muthoni Thuo; Respondent: Lucy Wamaitha Kiarie; Respondent: Samuel Kiarie; Respondent: Presbeterian Church of East Africa (PCEA) (sued through its Registered Trustees); Respondent: Presbeterian Church of East Africa (PCEA) Thindigua (sued through its Registered Trustees); Respondent: The Chief Land Registrar, Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 7 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Conservatory Orders
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Conservatory Orders, Abuse of Process, Eviction Proceedings, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Thuo Kamau
Applicant
Grace Muthoni Thuo
Applicant
Lucy Wamaitha Kiarie
Respondent
Samuel Kiarie
Respondent
Presbeterian Church of East Africa (PCEA) (sued through its Registered Trustees)
Respondent
Presbeterian Church of East Africa (PCEA) Thindigua (sued through its Registered Trustees)
Respondent
The Chief Land Registrar, Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the court should grant conservatory orders to restrain eviction of the applicants from the suit property pending appeal.
- 2 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicants had already litigated the issues in ELC 93 of 2015, where judgment was delivered dismissing their suit and granting a stay of execution for forty-five days. The applicants' subsequent filing of the present application, while an appeal and application for stay are pending in the Court of Appeal, was deemed an abuse of the court process. The court was not persuaded that the applicants deserved the exercise of its discretion in their favour, and therefore declined to grant any conservatory orders. The application was dismissed on the basis that it sought to re-litigate matters already determined and did not meet the threshold for the grant of conservatory...
Court Disposition
application dismissed
Orders
- The application for conservatory orders is dismissed.
- No conservatory orders are granted.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT NAIROBI
ELC PETITION NO 7 OF 2022
IN THE MATTER OF ARTICELS 24 AND 159 OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF ARTICLE 28, 43, 50 AND 57 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS
AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013.
BETWEEN
PETER THUO KAMAU....................................................................1ST PETITIONER
GRACE MUTHONI THUO.............................................................2ND PETITIONER
AND
LUCY WAMAITHA KIARIE........................................................1ST RESPONDENT
SAMUEL KIARIE.........................................................................2ND RESPONDENT
PRESBETERIAN CHURCH OF EAST AFRICA (PCEA)
(sued throughits Registered Trustees)............................................3RD RESPONDENT
PRESBETERIAN CHURCH OF EAST AFRICA (PCEA) THINDIGUA
(sued through its Registered Trustees)...........................................4TH RESPONDENT
THE CHIEF LAND REGISTRAR, NAIROBI..............................5TH RESPONDENT
RULING
1. This is the Notice of Motion dated 17th February 2022. The Petitioners/Applicants seek orders in terms of prayer no 2 of the notice of motion.
2. The grounds are that the 1st Petitioner/Applicant is sickly and that the Respondents are on the process of evicting him and his family from the suit property.
3. Mr. Mudanya for the Respondents opposes any grant of conservatory orders on the grounds that the issues were heard and determined in ELC 93 of 2015 (OS) and a judgment rendered.
4. I have considered the notice of motion and the affidavit in support. I have considered the rival submissions. The issue for determination is whether this court ought to grant any conservatory orders in the meantime.
5. The parties participated in ELC 93 of 2015 (OS): Peter Thuo Kamau and Grace Muthoni Kamau vs Lucy Wamaitha Kiarie & 5 Others.
6. This court rendered Judgment on 23rd September 2021. This court found that the Plaintiffs were in occupation of the suit property with permission. The Plaintiffs’ suit was dismissed with costs to the 1st, 3rd and 5th Defendants. This court on the date of delivery of Judgment granted a stay of execution for forty-five (45) days.
7. It is the Petitioners/Applicants case that they have preferred an appeal against the said judgment and that an application for stay of execution is pending in the Court of Appeal.
8. The Petitioners/Applicants first filed this Petition in the High Court (Constitutional & Human Rights Division). The same was transferred to this court.
9. I find that the application herein is an abuse of the court process. I am not persuaded that the Petitioners/Applicants deserve this courts discretion.
10. I decline to grant any conservatory orders in the mean time.
It is so ordered.
DATED, SIGNED AND DELIVEREDNAIROBI THIS 17TH DAY OF MARCH, 2022
...........................
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Mudanya for the Respondents
No appearance for the Petitioners
Steve - Court Assistant