[2019] KEELC 5070 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for non-compliance with the order to deposit security, as the reason advanced was lack of communication, which was not substantiated. Furthermore, the respondent's evidence that execution had already taken place was not rebutted by the...
Source-derived case information.
- Citation
- [2019] KEELC 5070 (KLR)
- Parties
- Appellant: Samuel Thilari M'Maitai; Respondent: Susan Kairuthi Mbirithi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 27 of 2018
- Procedural Posture
- Elc Appeal / Ruling on Application to Extend Time and Reinstate Conditional Stay
- Outcome
- application dismissed with costs to respondent
- Legal Topics
- Extension of Time, Stay of Execution, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Thilari M'Maitai
Appellant
Susan Kairuthi Mbirithi
Respondent
Procedural Posture
Elc Appeal / Ruling on Application to Extend Time and Reinstate Conditional Stay
Legal Issues
- 1 Whether the applicant is entitled to extension of time to deposit security for costs as previously ordered.
- 2 Whether the conditional stay of execution should be reinstated pending hearing of the earlier application.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for non-compliance with the order to deposit security, as the reason advanced was lack of communication, which was not substantiated. Furthermore, the respondent's evidence that execution had already taken place was not rebutted by the applicant. As a result, the legal landscape had changed by the time the application was presented, making it impossible to reinstate the conditional stay. The court concluded that the application lacked merit and dismissed it with costs to the respondent.
Court Disposition
application dismissed with costs to respondent
Orders
- The application dated 12.7.2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HGIH COURT OF KENYA AT MERU
ELC APPEAL NO. 27 OF 2018
SAMUEL THILARI M’MAITAI............................APPELLANT/APPLICANT
VERSUS
SUSAN KAIRUTHI MBIRITHI ...............................................RESPONDENT
RULING
1. Vide the application dated 12. 7.2019, applicant prays that the court be pleased to extend time for the applicant/appellant to deposit the sum of Shs.200,000 and reinstate the conditional stay pending the hearing of the application dated 9. 5.2019 as earlier directed. It is averred that the issue of deposit of security was not communicated to the applicant hence the non-compliance with the earlier court order.
2. In paragraph 6 of the replying affidavit of the respondent, it is averred that execution had already taken place on 1. 5.2019, an averment which has not been rebutted by applicant. It follows that even by the time applicant was presenting the application before me on 13. 5.2019, the legal landscape had changed and it appears the applicant was not candid on the issue of the status quo.
3. In the circumstances I find that the application is not merited. The same is dismissed with costs to respondent.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 31ST DAY OF JULY, 2019 IN THE PRESENCE OF:-
C/A: Ndonye Dennis
Muchiri for appellant/applicant
Munene holding brief for Mwenda Mwarania for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE