[2012] KEHC 5293 (KLR)
The court found that the applicant filed the application for stay of execution without undue delay, immediately after the lower court dismissed a similar application. The court was satisfied that the applicant demonstrated substantial loss would result if evicted from the land, given his occupation and developments...
Source-derived case information.
- Citation
- [2012] KEHC 5293 (KLR)
- Parties
- Applicant: Stephen Boiyo Misoi; Respondent: Stanley Wafula Wechuli
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 64 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal granted.
- Judges
- A Mshila
- Legal Topics
- Stay of Execution, Substantial Loss, Timeliness of Application, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Boiyo Misoi
Applicant
Stanley Wafula Wechuli
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application was filed without unreasonable delay.
Ratio Decidendi
The court found that the applicant filed the application for stay of execution without undue delay, immediately after the lower court dismissed a similar application. The court was satisfied that the applicant demonstrated substantial loss would result if evicted from the land, given his occupation and developments made. The court also found that the appeal raised substantial issues for determination. Therefore, the applicant met the legal requirements for grant of stay of execution pending appeal, except as to costs awarded in the lower court, which remain payable.
Court Disposition
Application for stay of execution pending appeal granted.
Orders
- Order for stay of execution of the decree in Eldoret CMCC No. 383 of 2005 pending hearing and determination of the appeal.
- Respondent awarded costs of this application.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL APPEAL NO. 64 OF 2011
STEPHEN BOIYO MISOI......................................................................................APPLICANT
VERSUS
STANLEY WAFULA WECHULI...............................................................RESPONDENT
RULING
The Applicant filed Notice of Motion dated 18th May 2011 under Order 42 Rule 6 of the Civil Procedure Rules seeking for orders for stay of execution from the decree of Eldoret CMCC No. 383 of 2005 pending the hearing and determination of the intended appeal.
The Applicant had initially filed a similar application in the lower court and the same was dismissed.
FACTS
The plaint filed in the subordinate court is premised on Plot No. 350 Ex-Jabali. The Applicant states that Plot No. 350 Ex-Jabali is distinct from Plot No. 281 Ex-Jabali. He avers that the 1st Appellant was in occupation of the same from 1997 to the year 2004 when he bought the same from the said 1st Appellant.
That is the orders were not granted the Respondent will proceed to execute the decree and evict the Applicant the land and he stood to suffer substantial loss due to the developments he had made thereon.
Therefore the Applicant’s prayer was that stay of execution pending appeal be granted together with costs.
The Application was strongly opposed by the Respondent who submitted that the application was made in bad faith with the intention of denying the Respondent an opportunity to enjoy the fruits of his judgment.
I have perused the Memorandum of Appeal and have read the submissions of both counsel for the Applicant and Respondent.
It is trite law that the Applicant must show the following;
(i)There has been no unreasonable delay in bringing the application.
(ii)The intended appeal has overwhelming chances of succeeding.
(iii)The intended appeal will be rendered nugatory if the orders sought are not granted.
(iv)Substantial loss.
These requirements must be met before the orders may be granted.
CONCLUSION
The application in the lower court was dismissed on the 18th May, 2011 and on the same date this application was filed in the High Court.
The judgment in the lower court was made on the 2nd March, 2011 and the Memorandum of Appeal was filed within time.
I am satisfied that the Applicant filed the application timeously and without undue delay.
The appeal involves land which the Applicant avers the 1st Appellant resided thereon from 1997 and he bought the same in 2004 resides thereon and has made substantial developments thereon, and if evicted the Applicant stands to be highly prejudiced and will suffer substantial loss.
I am satisfied that the appeal raises substantial issues for determination on appeal and that if orders for stay of execution are not granted and should the Applicant be evicted from the land the Applicant will suffer substantial loss.
I find that the application has merit and hereby grant an order for stay of execution pending the hearing and determination of the appeal.
The Respondent to be granted costs of this application. This order for stay of execution shall not cover the costs awarded to the Respondent in the lower court.
Dated and delivered at Eldoret this 13Th day of February 2012.
A.MSHILA
JUDGE