[2020] KEELC 1541 (KLR)
The court found that the defendants had filed a notice of appeal and that the application for stay was made without inordinate delay. The court was satisfied that the defendants were in occupation of the suit land and that eviction would cause them some loss, particularly as they had developed their homes. The court...
Source-derived case information.
- Citation
- [2020] KEELC 1541 (KLR)
- Parties
- Plaintiff: Titus Alfred Omudang Isili; Defendant: Beatrice Chemayiek Ndiema; Defendant: Pastor Elijah Munyekenye; Defendant: Rosemary Nanjala; Defendant: Augustine Shakama Obisiba Wamalwa; Defendant: Ainea Masafu Omanya; Defendant: Nobert Maelo Barasa; Defendant: John Wasike; Defendant: Benjamin Ochieng; Defendant: Timothy Kipkoech Keter; Defendant: Omari Bisaula Njofu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted, conditional on timely filing and service of record of appeal.
- Legal Topics
- Stay of Execution, Eviction Orders, Appeal Procedure, Irreparable Loss
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Alfred Omudang Isili
Plaintiff
Beatrice Chemayiek Ndiema
Defendant
Pastor Elijah Munyekenye
Defendant
Rosemary Nanjala
Defendant
Augustine Shakama Obisiba Wamalwa
Defendant
Ainea Masafu Omanya
Defendant
Nobert Maelo Barasa
Defendant
John Wasike
Defendant
Benjamin Ochieng
Defendant
Timothy Kipkoech Keter
Defendant
Omari Bisaula Njofu
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendants are entitled to an order of stay of execution of the decree pending the intended appeal.
- 2 Whether the application for stay was filed without inordinate delay.
- 3 Whether the defendants will suffer irreparable loss if evicted before the appeal is heard.
Ratio Decidendi
The court found that the defendants had filed a notice of appeal and that the application for stay was made without inordinate delay. The court was satisfied that the defendants were in occupation of the suit land and that eviction would cause them some loss, particularly as they had developed their homes. The court also noted that the plaintiff would not be unduly prejudiced by the grant of a stay, as he had alternative accommodation. Consequently, the court exercised its discretion to grant a stay of execution of the decree pending the hearing and determination of the intended appeal, subject to the defendants filing and serving their record of appeal within forty-five days, failing...
Court Disposition
Application for stay of execution granted, conditional on timely filing and service of record of appeal.
Orders
- Stay of execution of the decree or any order to evict or remove the defendants from occupation of title No. Waitaluk/Mabonde/Mabonde Block 3/Namgoi 190 and 191 pending hearing and final determination of the intended appeal.
- Defendants to file and serve their record of appeal within forty-five (45) days of the order, failing which the stay shall stand automatically vacated.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC NO. 1 OF 2006
TITUS ALFRED OMUDANG ISILI..............................................................PLAINTIFF
VERSUS
BEATRICE CHEMAYIEK NDIEMA.................................................1ST DEFENDANT
PASTOR ELIJAH MUNYEKENYE...................................................2ND DEFENDANT
ROSEMARY NANJALA......................................................................3RD DEFENDANT
AUGUSTINE SHAKAMA OBISIBA WAMALWA...........................4TH DEFENDANT
AINEA MASAFU OMANYA..............................................................5TH DEFENDANT
NOBERT MAELO BARASA...............................................................6TH DEFENDANT
JOHN WASIKE....................................................................................7TH DEFENDANT
BENJAMIN OCHIENG.......................................................................8TH DEFENDANT
TIMOTHY KIPKOECH KETER.......................................................9TH DEFENDANT
OMARI BISAULE NJOFU................................................................10TH DEFENDANT
RULING
1. By a Notice of Motion dated 12/6/2020 and filed in court on 17/6/2020 brought under Order 42 Rule 6 of the Civil Procure Rules, the defendants seek the following orders:
(1) Spent…
(2) That this honourable court be pleased to grant interim orders of stay of execution of the decree herein pending hearing and determination of this application
(3) That there be a stay of execution of decree or any order to evict or remove the defendants from their occupation of title No. Waitaluk/Mabonde/Mabonde Block 3/Namgoi 190 and 191, pending hearing and final determination of the intended appeal.
(4) That costs be provided.
2. The application is supported by the affidavit of the 1st defendant sworn on 12/6/2020on her own behalf and on behalf of the other defendants. The grounds upon which the application is based on are that this court ordered the eviction of the 1st ,3rd ,8th , and 9th defendants from the title known as Waitaluk Mabonde Block 3/Namgoi/191; that a notice of appeal has been filed evidencing an intention to appeal against that decision of this court; that should the applicants be evicted from their homes they will suffer irreparable loss; that the respondent would not be prejudiced by the grant of the orders sought and that the application has been timeously brought.
3. The respondent did not file any response to the application and this court considers it unopposed. None of the parties filed submissions in respect of the application.
4. The issue that arises in the instant application is whether an order of stay of execution of the decree pending an intended appeal against this court’s judgment should issue.
5. There is a notice of appeal filed in the court record. Therefore, for the purposes of the instant application there is an appeal in place.
6. The application was filed on 17/6/2020 while the judgment had been delivered on 20th May 2020. I do not consider that delay to be inordinate.
7. The applicants have demonstrated that they are on the suit land and if evicted they would suffer some loss. The application states that they have developed the aesthetics of their respective homes over time and that if they are evicted that aspect of their homes may be adversely affected and this may render the appeal nugatory.
8. The plaintiff is also said to be having a place to stay and granting of the orders would therefore not be extremely prejudicial to him.
9. I find that the instant application has merit. I hereby grant the application dated 12/6/2020 in terms of Prayer No. (3) thereof. However the defendants shall file and serve their Record of Appeal within forty five (45) days of this order in default of which the order of stay of execution issued herein shall stand automatically vacated and the plaintiff shall be at liberty to execute the decree against them. The costs of the application shall be costs in the appeal.
It is so ordered.
Dated, signed and delivered at Kitale via electronic mail on this 30th day of July, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.