[2017] KEELC 666 (KLR)
The court held that the stay of execution was granted by consent of both parties and adopted as an order of the court. Such consent orders are binding and cannot be set aside at the instance of one party unless proper proceedings are instituted and sufficient grounds are demonstrated. Since the defendants did not...
Source-derived case information.
- Citation
- [2017] KEELC 666 (KLR)
- Parties
- Plaintiff: Titus Kuto Kipungar; Defendant: Selina Tamining; Defendant: Pius Rotich; Defendant: Musa Koskei; Defendant: James Kipyego
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 181 of 2013
- Procedural Posture
- Stay Application / Ruling on Application to Vacate Stay of Execution
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- FM Njoroge
- Legal Topics
- Consent Orders, Stay of Execution, Setting Aside Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Kuto Kipungar
Plaintiff
Selina Tamining
Defendant
Pius Rotich
Defendant
Musa Koskei
Defendant
James Kipyego
Defendant
Procedural Posture
Stay Application / Ruling on Application to Vacate Stay of Execution
Legal Issues
- 1 Whether a consent order for stay of execution can be set aside at the instance of one party without proper proceedings.
- 2 Whether the defendants have established grounds to vacate the stay of execution granted by consent.
Ratio Decidendi
The court held that the stay of execution was granted by consent of both parties and adopted as an order of the court. Such consent orders are binding and cannot be set aside at the instance of one party unless proper proceedings are instituted and sufficient grounds are demonstrated. Since the defendants did not demonstrate any circumstances that would render the consent order untenable, the application to vacate the stay of execution lacked merit and was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 29/9/2017 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 181 OF 2013
TITUS KUTO KIPUNGAR.…........…........ PLAINTIFF
VERSUS
SELINA TAMINING……..................1ST DEFENDANT
PIUS ROTICH…………..................2ND DEFENDANT
MUSA KOSKEI……….….............3RD DEFENDANT
JAMES KIPYEGO……...................4TH DEFENDANT
R U L I N G
1. The application dated 29/9/2017 has been brought by thedefendants/respondents who seek that the orders of stay of execution of the court’s decree herein be vacated. The application is brought on the basis that the plaintiff/applicant has failed to prosecute the appeal and that the defendants have been denied the fruits of their judgment. The application is supported by the affidavit sworn by the 2nd defendant.
2. The genesis of the application is the adoption as an order of this court of a consent order recorded by the parties on 14/3/2017 following the filing of a written consent executed by the parties on the same day.
3. The executed consent provided for a stay of execution of the decree herein pending the hearing and determination of Court of Appeal Civil Appeal No. 37 of 2016 lodged at Eldoret touching on LR. No. West Pokot/Siyoi “A”/263. The said consent also provided that the taxed costs of Kshs.120,750/= have been paid by the plaintiff to the defendant as a condition for stay of execution of the decree herein pending the hearing and determination of the Court of Appeal Civil Appeal No. 37 of 2016.
4. I have noted that this is the consent that was confirmed by the parties on 14/3/2017. It is trite law that consent orders in suits cannot be set aside at the instance of one party unless that party files proceedings and demonstrates therein that a certain set of circumstances existed which makes the consent not tenable.
5. The orders of stay of execution in this case were not issued by the court upon application of one party. I find that those orders amount to a valid consent between the parties. For that reason they may not be as easily set aside as the orders obtained at the instance of one party.
6. I therefore find that the application dated 29/9/2017 has no merit. Consequently, dismiss the application with costs to the plaintiff.
Dated, signed and delivered at Kitale on this 20th day of December, 2017.
MWANGI NJOROGE
JUDGE
20/12/2017
Before – Mwangi Njoroge Judge
Court Assistant – Isabellah
Mr. Majanga holding brief for Mr Nyamu for the plaintiff
Ms. Sitati holding brief for Ms. Arunga for the Respondent
COURT:
Ruling read in open court.
MWANGI NJOROGE
JUDGE
20/12/2017