[2011] KEHC 10 (KLR)
The court found that although the eviction order had already been executed and the applicant admitted as much, there remained a risk that the suit property (Ruiru/Ruiru East Block 2/150) could be transferred or otherwise dealt with before the appeal was determined. To preserve the subject matter of the appeal and...
Source-derived case information.
- Citation
- [2011] KEHC 10 (KLR)
- Parties
- Appellant: Salome Mumbi Karumba; Respondent: Stephen Ndichu Njihia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 323 of 2011
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Application for status quo granted with restriction on title until determination of appeal.
- Legal Topics
- Stay of Execution, Double Allocation of Land, Eviction Orders, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Salome Mumbi Karumba
Appellant
Stephen Ndichu Njihia
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal after eviction orders have been executed.
- 2 Whether the court should issue orders to preserve the suit property pending determination of the appeal.
Ratio Decidendi
The court found that although the eviction order had already been executed and the applicant admitted as much, there remained a risk that the suit property (Ruiru/Ruiru East Block 2/150) could be transferred or otherwise dealt with before the appeal was determined. To preserve the subject matter of the appeal and prevent the appeal from being rendered nugatory, the court exercised its discretion to issue an order restraining any dealings with the title to the suit land until the appeal is heard and determined. The court thus confirmed the ex parte orders previously issued, restricting any sale, transfer, or other dealings with the property, and ordered that costs of the application would...
Court Disposition
Application for status quo granted with restriction on title until determination of appeal.
Orders
- There shall be no dealings with land title Ruiru/Ruiru East Block 2/150 until the determination of the appeal.
- The title shall not be sold, transferred, or otherwise dealt with until the appeal is determined.
Full Case Text
Judgment text and source record
51 paragraphs
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Subordinate court case
LAND
3. 1 LR Ruiru/Ruiru East Block 2/150
3. 2 Originating summons
3. 3 Judgment of subordinate court delivered on
27th June 2011.
3. 4 Orders of eviction issued on 8th July 2011.
3. 5 Appellant original 1st defendant files appeal on
15th July 2011
3. 6 Files application seeking orders of stay of
execution of the appellant from the suit land.
3. 7 Respondent in reply, there is nothing to stay
as matter overtaken by event.
4. In reply/submissions:
4. 1 The applicant prays for status quo pending appeal.
5. Held:
Application for status quo.
There be restriction of the title, not to be
sold transferred in any way till determination
of the appeal.
6. Case Law:
7. Advocates:
i) J. Musyoka instructed by M/s P.K. Njoroge & Co Advocates for
appellant/applicant
ii) Kahuthu G.J. holding brief for Rung’are M instructed by M.M. Rungare& Co Advocates for respondent/respondent.
SALOME MUMBI KARUMBA …………….………….… APPELLANT/RESPONDENT
VERSUS
STEPHEN NDICHU NJIHIA ………….…..……………. RESPONDENT/APPLICANT
R U L I N G
Stay of Execution Application
Notice of Motion 29th August 2011
I.BACKGROUND
1. In this land matter that involved the issue of a land buying company as to whom between legal owners of plot 2/340 and block 2/150 own Ruiru/Ruiru East.
2. The matter was before the Resident Magistrate’s court at Thika civil case 168/91.
3. The wish of the appellant is that there should be no interference of the land pending the hearing interparties of the appeal in the suit land before that court. (The issue of the land being double allocation.) The trial magistrate after arbitration at the company made orders of eviction on 27th June 2011. The application for stay of execution was filed on 15th July 2011 as was the appeal.
4. Respondent stated that the orders of eviction was effected on14th August 2011. There is nothing left to stay.
5. This is admitted by the applicant.
IIFINDINGS
6. The exparte orders of Dulu J issued on 12th September 2011 may be confirmed on the following terms.
7. That there be no dealings with land title Ruuiru/Ruiru/East block 2/150 until the determination of this appeal suit. There be a restrain on the title only, that it be not sold, transferred or dealt with in anyways to preserve the land till the determination of the appeal.
8. There will be costs in the application.
DATED THIS 23RD DAY OF MARCH 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) J. Musyoka instructed by M/s P.K. Njoroge & Co Advocates for
appellant/applicant
ii) Kahuthu G.J. holding brief for Rung’are M instructed by M.M. Rungare& Co Advocates forrespondent/respondent