[2020] KEELC 3468 (KLR)
The court found that the applicant failed to demonstrate that he would suffer substantial loss if stay was not granted, nor did he show that he was in occupation of the suit land or that eviction would render him landless. Additionally, the application was not made without undue delay, as there was a significant...
Source-derived case information.
- Citation
- [2020] KEELC 3468 (KLR)
- Parties
- Appellant: Tiapukel Ole Parkire; Respondent: Dopoi Monyis Nasieku
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 15 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Stay of Execution, Irreparable Loss, Substantial Loss, Timeliness of Application, Appeal Success Probability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tiapukel Ole Parkire
Appellant
Dopoi Monyis Nasieku
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 2 Whether the application was made without undue delay.
- 3 Whether the applicant will suffer substantial or irreparable loss if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to demonstrate that he would suffer substantial loss if stay was not granted, nor did he show that he was in occupation of the suit land or that eviction would render him landless. Additionally, the application was not made without undue delay, as there was a significant lapse of time between the delivery of judgment and the filing of the application. The applicant also failed to file submissions despite being given an opportunity. Consequently, the court held that the application did not meet the threshold for grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC APPEAL NO. 15 OF 2019
TIAPUKEL OLE PARKIRE.................................APPELLANT/APPLICANT
-VERSUS-
DOPOI MONYIS NASIEKU......................................................RESPONDENT
RULING
The Appellant/Applicant had by a Notice of Motion dated 5th August, 2020 seeking for orders of stay of execution arising from the judgment of the court that was issued on 22nd July, 2019 on the grounds that the process of execution was commenced against the Appellant and further that the Appellant has applied for and has not yet received copies of proceedings, judgement and ruling in the matter and lastly the appeal varies highly in issues of law and facts.
The Application was supported by the affidavit of the Appellant in which he stated that the Respondent has commenced the process of executing the judgement against him and in the event that the application is not allowed he will suffer irreparable loss and damages.
The Application was opposed by the Respondent by way of a replying affidavit in which he contends that, the Appellant’s Application was overtaken by events and that since the matter was heard and determined by a competent court it will be just and fair that he is allowed to enjoy the fruits of his judgement.
I have read the Application before me and the submissions filed on behalf of the Defendant/Respondent. The Appellant though given the chance to file his submissions has failed to do so.
The grounds upon which the grant of stay of execution was granted is now well settled. A party seeking stay should demonstrate that he will suffer irreparable loss in the event that stay orders are not granted, one must also demonstrate that the Appeal has overriding chance of success and lastly that the application has been made without undue delay. The grounds are what is stated in under order 42 Rule 6 (2) of the Civil Procedure Rules.
From the Application and the Affidavit in support of the same I find that the instant application was not made without undue delay. The Appellant had filed the Application on 8/8/2019 even though Judgment in the matter was delivered on 13/3/19 and he made several other applications.
On whether The Appellant has met the other grounds as contemplated under order 42 (6) of the Civil Procedure Rules, I find that the Appellant has not demonstrated that he will suffer substantial loss if not granted the orders sought and further that the Appellant has not even demonstrated that he is in occupation of the suit land and his eviction will render him landless.
From the foregoing therefore I find that the application is not merited and the same is dismissed with costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this24thday of February, 2020
Mohammed Kullow
Judge
24/2/2020
In the presence of: -
Mr. Kilele for the Appellant/Applicant
N/A for the Respondent
Mohammed Kullow
Judge
24/2/2020