[2019] KEELRC 1599 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would result if the stay was not granted, as the plaintiffs were already in occupation of the suit land. The application for stay was filed four months after judgment without a reasonable explanation for the delay, and the applicant did...
Source-derived case information.
- Citation
- [2019] KEELRC 1599 (KLR)
- Parties
- Plaintiff: Rashid Said; Plaintiff: Jane Kanini Said; Plaintiff: Ibrahim Said; Plaintiff: John Columbus Gikunda; Plaintiff: Rehema Bilali; Plaintiff: Abdahah Muriungi; Plaintiff: Amin Bilali; Defendant: Stephen Kimonye Ibutu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 121 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to respondents
- Legal Topics
- Stay of Execution, Substantial Loss, Delay in Application, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Said
Plaintiff
Jane Kanini Said
Plaintiff
Ibrahim Said
Plaintiff
John Columbus Gikunda
Plaintiff
Rehema Bilali
Plaintiff
Abdahah Muriungi
Plaintiff
Amin Bilali
Plaintiff
Stephen Kimonye Ibutu
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant has offered security for due performance as required by law.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would result if the stay was not granted, as the plaintiffs were already in occupation of the suit land. The application for stay was filed four months after judgment without a reasonable explanation for the delay, and the applicant did not offer security for due performance. Consequently, the requirements under Order 42 Rule 6(2) were not satisfied, rendering the application unmerited.
Court Disposition
application dismissed with costs to respondents
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 121 OF 2009 (OS)
RASHID SAID.................................................1ST PLAINTIFF
JANE KANINI SAID.....................................2ND PLAINTIFF
IBRAHIM SAID.............................................3RD PLAINTIFF
JOHN COLUMBUS GIKUNDA...................4TH PLAINTIFF
REHEMA BILALI.........................................5TH PLAINTIFF
ABDAHAH MURIUNGI...............................6TH PLAINTIFF
AMIN BILALI................................................7TH PLAINTIFF
VERSUS
STEPHEN KIMONYE IBUTU.........................DEFENDANT
RULING
1. By a notice of motion filed on 26. 2.2019 the applicant/defendant seeks orders of stay of execution of the judgment in MERU ELC CASE No. 121 of 2009 (OS) delivered by this court on 31. 10. 2018 and all consequential orders pending the hearing and determination of the application and the intended appeal and that costs be provided for.
2. The grounds in support of this application are thatthe Judgment delivered on 31. 10. 2018 was in favour of the respondents/plaintiffs herein whose effect is that land registration NO. Nkuene/Mitunguu/180 is to be registered in the names of the plaintiffs/respondents and that the respondents are in process of implementing the terms of the said Judgment.
3. Applicant has also sworn a supporting affidavit where he avers that he stands to suffer monumental loss and damages unless orders of stay of execution are granted.
4. The application is opposed bide the replying affidavit of one John Columbus Gikunda who avers that the plaintiffs will be prejudices by the prayers sought in the application. He also avers that this matter has been in court since 2009.
5. The provisions of order 42 rule 6 (2) provides as follows:
“No order for stay of execution shall be made under sub-rule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.
6. An Applicant who comes to court under the aforementioned rule is required to demonstrate that he stands to suffer substantial loss and that the application has been made without delay. He also ought to offer security. Judgment herein was delivered on 31. 10. 2018 while the application for stay was filed on 26. 2.2019. No reasonable explanation has been advanced as to why this application was made four months after date of delivery of judgment.
7. Applicant has also not demonstrated the monumental loss and damage that he stands to suffer. After all it is the plaintiffs who are in occupation of the suit land going by the Judgment of this court.
8. I therefore find that the application is unmerited. The same is dismissed with costs to respondents.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 15TH MAY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Munga holding brief for M. Kariuki for plaintiffs
Defendant/applicant
1st, 3rd, 4th, 6th plaintiffs
HON. LUCY. N. MBUGUA
ELC JUDGE