[2013] KEHC 4894 (KLR)
The court found that, despite the unclear background, the applicant demonstrated that she stands to suffer substantial loss if the property is sold, as she resides on and has developed it. The application was brought promptly and the applicant offered security. The court held that it has jurisdiction to grant a stay...
Source-derived case information.
- Citation
- [2013] KEHC 4894 (KLR)
- Parties
- Appellant: Serah Wambui Kinyanjui; Respondent: Peter Mwangi Mbarire; Respondent: Christopher Waweru Nderitu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 175 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Temporary stay of execution granted on condition of security deposit.
- Legal Topics
- Stay of Execution, Auction of Property, Security for Stay, Res Judicata, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serah Wambui Kinyanjui
Appellant
Peter Mwangi Mbarire
Respondent
Christopher Waweru Nderitu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the orders made by the lower court on 20th March, 2012 pending appeal.
- 2 Whether the application is res judicata and amounts to an abuse of the court process.
- 3 Whether the applicant has satisfied the requirements for grant of stay under Order 42 rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that, despite the unclear background, the applicant demonstrated that she stands to suffer substantial loss if the property is sold, as she resides on and has developed it. The application was brought promptly and the applicant offered security. The court held that it has jurisdiction to grant a stay even where the lower court has declined or granted the relief. The court was satisfied that the requirements under Order 42 rule 2 of the Civil Procedure Rules were met. Accordingly, a temporary stay of execution was granted, conditional upon the applicant depositing Kshs.50,000 in a joint account of the parties' advocates within fourteen days, failing which the stay would...
Court Disposition
Temporary stay of execution granted on condition of security deposit.
Orders
- A temporary order of stay of execution is granted in terms of paragraph (c) of the motion dated 5th April, 2012, pending hearing and determination of the appeal.
- The applicant shall deposit Kshs.50,000 in a bank account in the names of the advocates for the parties within fourteen (14) days from the date of this order.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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SERAH WAMBUI KINYANJUI…………………...………APPELLANT/APPLICANT
VERSUS
PETER MWANGI MBARIRE…………………………………….1ST RESPONDENT
CHRISTOPHER WAWERU NDERITU………………………….2ND RESPONDENT
RULING
The background to this application is scanty. But from what I am able to glean from the record, the applicant’s land is poised to be sold in a public auction as a result of certain orders made by the court below on 20th March, 2012. She seeks to stay those orders.
The applicant has deposed that she is the registered proprietor of the property set to be auctioned; that she lives on the property and has developed it; that if no stay of execution is granted she stands to be rendered homeless. She has undertaken to provide security.
The respondents filed both a replying affidavit and grounds of opposition, the combined effect of which, is that the application does not satisfy the provisions of the relevant orders; that the application is res judicata and therefore amounts to an abuse of the court process and finally that the application is intended to delay the execution of a decree issued five years ago.
I reiterate that, from the pleadings, it is difficult to understand what preceded this application. While it would appear that the orders of 20th March, 2012 related to an order dismissing the applicant’s application for stay in the court below, there is no indication what was sought to be stayed by that dismissed application.
If the application related to a dismissal of an application, then orders of stay cannot issue as no positive order capable of being executed was issued. Again from the pleadings and annextures, it would appear that the applicant’s property is due for sale. If that be so, then the applicant has complied with Order 42 rule 2 of the Civil Procedure Act by demonstrating that if the sale proceeds, she stands to lose the property. She has brought this application timeously and also offered to provide security.
It is emphasized that this court has the power to entertain an application for stay even where the court below has declined or granted the relief. Pending the hearing and determination of this appeal, there will be a temporary order of stay in terms of paragraph (c) of the motion dated 5th April, 2012, subject to the applicant depositing in a bank account in the names of the two advocates representing the parties, Kshs.50,000/= within fourteen (14) days from the date of this order failing which the orders of stay shall be spent without further orders.
Costs to be costs in the appeal.
Dated and Signed at Nakuru this 31st day of December, 2012.
W. OUKO
JUDGE
Dated, Signed and Delivered at Nakuru this 21st day January, 2013 by Hon. Justice M. J. Anyara Emukule.
JUDGE