[2008] KEHC 1271 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Misc. Appli. 248 of 1999

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

THE MWINGI DISTRICT LAND DISPUTES TRIBUNAL::::::::::::::::::RESPONDENT

AND

STEPHEN MUNYOKI MWANGANGI::::::::::::::::::::::::::::::::::INTERESTED PARTY

AND

EX-PARTE :::::::::::::::::::::::::::::::::::::::::::::::::::::::PHILIP MUSYOKA MBUNGU

RULING

1. The Application dated 9. 7.2008 is premised on Order XXI Rule 25 of the Civil Procedure Rules which provides as follows;-

“ Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.”

2. I am being asked thereby to stay the decree in Land Case No. 10/1998pending the determination of the Notice of Motion dated 23. 12. 1999 in what I gather is H.C.MISC. Appl. 2481 /1999 (Machakos).

3. To put matters into clearer perspective, the present Applicant instituted the present Miscellaneous Application when the Applicant was arrested on 7. 7.2008 and ordered to be detained for 30 days in execution of the decree for costs arising from certain proceedings in Land Case No. 10 of 1989 aforesaid. That land case from annextures to the Supporting Affidavit sworn on 9. 7.2008 by Julius Musee Musyoka was instituted by Stephen Musyoki Mwangangi against Philip Musyoka Mbungu at Mwingi District Land Disputes Tribunal. The elders’ award was that the parcel of land in dispute was awarded to Mwangangi aforesaid and Mbungu was ordered to pay him “all the case costs plus destruction of trees in the disputed land.” The costs were then sought through Mwingi SRM’s Court hence the orders issued on 7. 7.2008. I have also seen annextures showing that on 24. 12. 1999, Mwangangi filed a Notice of Motion seeking orders of certiorari to quash “the judgment and decree of the Resident Magistrate sitting at Mwingi in Land Case No.10 of 1999” dated 23/2/1999. ”Those proceedings are denied by the Respondent who claims that he is unware of the same but Mr. Musyoki for the Applicant says that in fact an order of stay of Land Case No. of 1998 was issued within the judicial review proceedings but the same was not extracted and served.

4. I have heard counsel in submissions and to my mind although the present Application is beset by procedural questions, there is a fundamental issue that this court must first investigate; since prima-facie, H .C. Misc 24/1999 seems to have been filed in this court on 24. 12. 1999, where is the file relating thereto? It is said that the file cannot be traced and the advocates who filed it are to the knowledge of this court dead and/or no longer in practice; in any event the firm no longer exists. It would prima facie be improper for execution to continue if indeed orders of stay were issued once leave to institute judicial review proceedings was granted. That is the whole import of Rule 25 which I have reproduced above; to stay execution until another suit is concluded. If stay was in fact granted earlier, there is no harm if stay is granted now while this court investigates the other suit.

5. I see merit in the Application and I will grant stay as prayed and in the meantime I will immediately ask the Deputy Registrar of this court to let me know the status of H.C. Misc 248/1999 for me to give directions/orders in due course.

6. Costs shall be in the cause.

7. Orders accordingly.

Dated and delivered at Machakos this 14thday ofOctober 2008.

Isaac Lenaola

Judge

In the presence of: Mr. Mutinda h/b for Mr. Musyoki for Applicant

Isaac Lenaola

Judge