[2012] KEHC 2384 (KLR)
The court found that the 2nd respondent had already completed construction on the suit property and let the premises to tenants, as evidenced by uncontroverted affidavits and tenancy agreements. The applicant did not rebut these facts. As such, the orders sought for stay of execution and injunction had been...
Source-derived case information.
- Citation
- [2012] KEHC 2384 (KLR)
- Parties
- Appellant: Romanors Othieno Abuti; Respondent: Butere Mumias County Council; Respondent: Kenedey Peter Onyango
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 131 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Injunction Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Interlocutory Injunctions, Allocation of Land, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Romanors Othieno Abuti
Appellant
Butere Mumias County Council
Respondent
Kenedey Peter Onyango
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order restraining the respondents from dealing with Plot No. 8 Munami Market pending appeal.
- 2 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 3 Whether the application has been overtaken by events due to completion of construction and letting of the property.
Ratio Decidendi
The court found that the 2nd respondent had already completed construction on the suit property and let the premises to tenants, as evidenced by uncontroverted affidavits and tenancy agreements. The applicant did not rebut these facts. As such, the orders sought for stay of execution and injunction had been overtaken by events, and there was nothing left to be stayed. The court declined to comment on the merits of the appeal at this interlocutory stage and dismissed the application with costs in the cause.
Court Disposition
application dismissed
Orders
- The application dated 17.2.11 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
Civil Appeal 131 of 2010
ROMANORS OTHIENO ABUTI ............................................ APPELLANT
VERSUS
BUTERE MUMIAS COUNTY COUNCIL .................... 1ST RESPONDENT
KENEDY PETER ONYANGO....................................... 2nd RESPONDENT
RULING
The application dated 17. 2.11 seeks orders that the court be pleased to bar the Defendants/Respondents from allocating and/or developing, erecting structures and or dealing in any way with Plot No. 8 Munami Market pending the hearing and determination of the Applicant’s Appeal filed herein.
Secondly, the applicant seeks orders of stay of execution of the Decree obtained herein and any other consequential orders pending the hearing and determination of the Applicant’s Appeal herein.
The applicant has also prayed that the O.C.S. Mumias Police Station do ensure compliance.
The application is supported by the affidavit of the applicant sworn on 17. 2.11. According to the said affidavit it is stated that the 1st respondent has allocated the suit plot to the 2nd respondent who has commenced construction works on the same. That the appellant’s application for stay before the trial magistrate’s court was denied. That if the construction works proceed the applicant will suffer irreparable loss and the appeal will be rendered nugatory. That the appeal has good chances of success as the trial magistrate arrived at an erroneous finding. The applicant averred that his application has been made without delay and he is willing to provide security for costs.
The application is opposed to as per the replying affidavit of KENNEDY PETER ONYANGO, the 2nd Respondent.
According to the 2nd Respondent, he was allocated the suit Plot by the 1st Respondent and he paid all the levies and rates. That after the allotment the 2nd Respondent submitted building plans which were approved and he developed the plot by constructing commercial buildings which are complete and he has let them out to tenants.
The 2nd Respondent’s contention is that the orders sought have therefore been overtaken by events.
The uncontroverted evidence in the affidavit of the 2nd Respondent is that he has constructed, to the completion the buildings and rented the same out to the tenants. The tenancy agreements have been exhibited (annexure “KPO 3b”). There was no supplementary affidavit filed by the applicant to rebut the said assertions.
Indeed the applicant in paragraph No. 4 of his affidavit concedes that the 1st Respondent has already allocated the plot to the 2nd Respondent who has commenced construction works.
In the premises therefore, I agree with the submissions of the 2nd Respondent’s Counsel that there is nothing to be stayed.
Based on the materials placed before this court, that is the Memorandum of Appeal and the affidavit evidence, this court is not able to comment on the chances of the appeal at this stage.
All in all the application fails with costs in the cause.
Delivered, dated and signed at Kakamega this 31st day of July, 2012
B. THURANIRA JADEN
J U D G E