[2024] KEELC 14094 (KLR)
The court found that although the title deed had already been cancelled and the land registered in the decree holder's name, it was necessary to preserve the subject matter of the intended appeal. To avoid rendering the appeal nugatory or academic, the court ordered a stay of any further transfer, charge, or change...
Source-derived case information.
- Citation
- [2024] KEELC 14094 (KLR)
- Parties
- Plaintiff: Trudle Kwamboka Tengeya (Suing as Legal Representative of the Estate of the Late Robert Tengeya Sika); Defendant: Robert Ndati Obare; Defendant: The Hon Attorney General; Defendant: County Land Registrar, Nyamira; Defendant: Count Land Surveyor, Nyamira; Defendant: Deputy County Commisssioner, Borabu County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E008 of 2023
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Partial stay granted to preserve the subject matter pending appeal.
- Judges
- JM Kamau
- Legal Topics
- Stay of Execution, Appeal Procedure, Title Cancellation, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trudle Kwamboka Tengeya (Suing as Legal Representative of the Estate of the Late Robert Tengeya Sika)
Plaintiff
Robert Ndati Obare
Defendant
The Hon Attorney General
Defendant
County Land Registrar, Nyamira
Defendant
Count Land Surveyor, Nyamira
Defendant
Deputy County Commisssioner, Borabu County
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of its judgment pending the hearing and determination of the intended appeal.
- 2 Whether the application for stay has been overtaken by events due to the cancellation of the title deed.
- 3 Whether further dealings with the suit land should be restrained pending appeal.
Ratio Decidendi
The court found that although the title deed had already been cancelled and the land registered in the decree holder's name, it was necessary to preserve the subject matter of the intended appeal. To avoid rendering the appeal nugatory or academic, the court ordered a stay of any further transfer, charge, or change of ownership of the suit land, except for the transfer already effected, pending further orders from the Court of Appeal. The court balanced the interests of both parties and exercised its discretion to maintain the status quo until the appellate process is concluded.
Court Disposition
Partial stay granted to preserve the subject matter pending appeal.
Orders
- There shall be a stay of any further transfer, charge, or change of ownership of the suit land other than the transfer already effected until further orders of the Court of Appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Tengeya (Suing as Legal Representative of the Estate of the Late Robert Tengeya Sika) v Obare & 4 others (Environment & Land Case E008 of 2023) [2024] KEELC 14094 (KLR) (18 December 2024) (Ruling)
Neutral citation: [2024] KEELC 14094 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case E008 of 2023
JM Kamau, J
December 18, 2024
Between
Trudle Kwamboka Tengeya
Plaintiff
Suing as Legal Representative of the Estate of the Late Robert Tengeya Sika
and
Robert Ndati Obare
1st Defendant
The Hon Attorney General
2nd Defendant
County Land Registrar, Nyamira
3rd Defendant
Count Land Surveyor, Nyamira
4th Defendant
Deputy County Commisssioner, Borabu County
5th Defendant
Ruling
1. Having been dissatisfied with the Judgment of this Court read and delivered on 31/10/2024 the 1st Defendant did notify this Court that he intends to appeal against the whole of the said Judgement to the Court of Appeal by filing a Notice of Appeal dated 11/11/2024. Subsequently, on 13/11/2024 he filed an Application under a certificate of urgency seeking this Court’s order of stay of its aforesaid Judgment pending the Hearing and determination of the Intended Appeal. The main ground of the said Application is that the Land Registrar, Nyamira has issued a letter of intention to cancel his Title and sub-divide the suit land in execution of the Court Decree which would cause the Applicant irreparable loss and the Intended Appeal would be rendered nugatory. In his Replying Affidavit sworn on 15/11/2024, the Decree Holder deponed that the Application is calculated to derail the execution of the Decree. But more so that the Application has already been overtaken by events since the Title Deed in issue has already been canceled and asks this court to dismiss the Application. He attached a copy of the Certificate of Search in respect of KITARU SETTLEMENT SCHEME/94 showing it to be in the name of the Decree Holder with effect from 6/11/2024. In order not to make the Intended Appeal an academic exercise, I order that there be a stay of any further transfer of the suit land, charge or any further change of ownership other than the transfer that has so far been effected until further orders of the Court of Appeal once the Intended Appeal is filed.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 18TH DAY OF DECEMBER, 2024. MUGO KAMAUJUDGEIn the Presence of:Court Assistant: BrendaPlaintiff’s Counsel: Mr. OchokiDefendants’ Counsel: Mr. Masese for the 1st Defendant