[2014] KEHC 4009 (KLR)
The court found that the mere filing of an application for stay or leave to appeal does not automatically stay proceedings or execution. As there was no appeal filed nor any order of stay in force at the time of hearing, the respondent had not demonstrated any legal basis for the court to decline granting the orders...
Source-derived case information.
- Citation
- [2014] KEHC 4009 (KLR)
- Parties
- Applicant: Pius Sikwembe Masai; Respondent: Martin Nabangi Mulongo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 29 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application granted in part
- Judges
- AA Omollo
- Legal Topics
- Land Transfer, Specific Performance, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Sikwembe Masai
Applicant
Martin Nabangi Mulongo
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the respondent should be compelled to sign transfer forms for subdivision of one acre of land to the applicant.
- 2 Whether the pending application for stay or leave to appeal operates as a stay of proceedings or execution.
- 3 Whether the court should delegate authority to the Deputy Registrar to execute documents in default.
Ratio Decidendi
The court found that the mere filing of an application for stay or leave to appeal does not automatically stay proceedings or execution. As there was no appeal filed nor any order of stay in force at the time of hearing, the respondent had not demonstrated any legal basis for the court to decline granting the orders sought. The court therefore compelled the respondent to sign the transfer forms for subdivision of one acre of land to the applicant, and in default, authorized the Deputy Registrar to execute the necessary documents on behalf of the respondent.
Court Disposition
application granted in part
Orders
- The respondent is compelled to sign transfer forms for subdivision of one acre (0.4 ha) of land from L.R. E. Bukusu/N. Kanduyi/8482 to the applicant.
- In default of the respondent executing the documents, the Deputy Registrar shall sign all necessary documents on behalf of the respondent transferring the one acre portion to the applicant.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISCELLANEOUS CIVIL APPL. NO. 29 OF 2014
PIUS SIKWEMBE MASAI..............…....................................APPLICANT
VERSUS
MARTIN NABANGI MULONGO.......…........................ RESPONDENT
RULING
1. The applicant Pius Nabangi Sikwembe Masai moved the court vide his application dated 12. 3.2014 seeking for orders;
1. That this honourable court do allow the respondent be compelled to sign transfer forms for subdivision for one acre (0. 4 Ha) of land curved from E. BUKUSU/N. KANDUYI/8482 to the applicant's names and that in default the court to delegate its powers to the Deputy Registrar to sign all the necessary documents on behalf of the respondent.
2. The further ground to be adduced at the hearing of this application.
3. Costs of this application to be provided for.
2. The application is opposed. The respondent filed an affidavit in reply and at paragraph 2 thereof deposed that he has filed an appeal in the high court to oppose the motion. He annexed the notice of motion as filed to this replying affidavit. He deposed that this application is meant to transfer his land and he prayed the motion be stayed pending hearing of his appeal.
3. I have perused through the pleadings and considered the oral submissions made. Ms. Nanzushi advocate for the applicant submitted that there is no appeal that is pending in respect of the judgment of this court delivered in 2012. Mr. Areba advocate on his part for the respondent submitted that there does exist an application for stay and leave to appeal out of time. That their application will be overtaken by events if this application is allowed. He urged the court to suspend this motion until they would have prosecuted their application.
4. The application filed by the respondent and annexed to his replying affidavit is dated 15th May 2014 and filed in court on 18. 5.14. This notice of motion is dated 12th March 2014 and filed in court on 13. 3.14. There is a procedure to be followed if a party wishes to stay proceedings. The filing of an application does not of itself act as a stay of proceedings. The respondent in the annexed application sought stay of execution of the decree but not stay of proceedings. As at this date of hearing the present application, there is no appeal filed nor an order of stay of proceedings in force. There is nothing put forward by the respondent to this court that can make it not decline to grant the orders prayed for. The prayer seeking this court‘s order to compel the respondent to sign transfer forms for subdivision for one acre (0. 4 ha) to be curved from L.R. E. Bukusu/N. Kanduyi/8482 to the applicants name be and is hereby granted. In default of the respondent executing the documents, the Deputy Registrar shall sign all those necessary documents on behalf of the respondent transferring the one acre portion being curved out of L.R no. E.Bukusu/N.Kanduyi/8482 in favour of the applicant. Each party to bear their costs.
Dated, Signed and Delivered in Bungoma this 8th day of July 2014.
A. OMOLLO
JUDGE