[2019] KEELC 3421 (KLR)
The court declined to grant or extend interim stay orders because there was ambiguity regarding the current possession and use of the suit land, with both parties claiming to be in occupation. The court had already directed the Executive Officer to visit the scene to establish the true position on the ground. In the...
Source-derived case information.
- Citation
- [2019] KEELC 3421 (KLR)
- Parties
- Appellant: Titus Mithika Gichunge; Respondent: Cyprian Kaberia M’Ibutu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 55 of 2019
- Procedural Posture
- Stay Application / Interim Ruling on Application for Extension of Stay Orders Pending Appeal
- Outcome
- Application for extension of interim stay orders declined.
- Legal Topics
- Stay of Execution, Interim Orders, Possession of Land, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Mithika Gichunge
Appellant
Cyprian Kaberia M’Ibutu
Respondent
Procedural Posture
Stay Application / Interim Ruling on Application for Extension of Stay Orders Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an extension of interim stay orders pending the hearing of the applications.
- 2 Whether the situation on the ground regarding possession of the suit land warrants the grant or extension of stay orders.
Ratio Decidendi
The court declined to grant or extend interim stay orders because there was ambiguity regarding the current possession and use of the suit land, with both parties claiming to be in occupation. The court had already directed the Executive Officer to visit the scene to establish the true position on the ground. In the absence of clear evidence as to who is in possession, and given the risk of creating further ambiguity or prejudice, the court found it inappropriate to grant or extend interim orders at this stage. The determination of the applications for stay and variation would proceed after the scheduled hearing and upon receipt of the scene visit report.
Court Disposition
Application for extension of interim stay orders declined.
Orders
- No extension or grant of interim stay orders as at now.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL 55 OF 2019
TITUS MITHIKA GICHUNGE...............APPELLANT/APPLICANT
VERSUS
CYPRIAN KABERIA M’IBUTU.................................RESPONDENT
INTERIM RULING
1. A judgment was delivered in Maua CMCC No. 123/2014 on 28. 2.2018 which triggered the present proceedings. Defendant was dissatisfied with the said judgment and he therefore filed a memorandum of appeal along with an application for stay of the judgment dated 9. 4.2019. The application for stay of execution was presented before Judge P.M. Njoroge of Chuka ELC on 10. 4.2019 whereby, the application was allowed on temporary basis on condition that applicant was to deposit shs.500,000 within 14 days failure to which the order was to automatically stand as spent by 13. 5.2019 unless extended or varied by this court. The conditional stay was also to last for 30 days.
2. The applicant did not comply with the orders given by Judge P.M. Njoroge necessitating the filing of another application on 10. 5.2018 seeking the variation of the orders of 10. 4.2019.
3. Both application dated 9. 4.2019 and the one dated 8. 5.2019 are scheduled for hearing on 10. 7.2019.
4. Applicant’s counsel has sought for extension of the stay orders in the intervening period which application was hotly contested. The respondent avers that he is the one on the suit land, an averment captured in his replying affidavit. Applicant also says that he is the one on the suit land. I do recall vividly that the issue as to who is on the suit land is hotly contested. The parties were in court when the matter was called out and each litigant was claiming to be the one using the suit land.
5. Counsel for respondent avers that when judgment was delivered on 28. 2.2018 a stay of 30 days was granted where by at the lapse of the 30 days, respondent moved into the land.
6. This court with the agreement of counsels for both parties has already given directions for the Executive Officer of this court to visit the scene and establish who is in occupation and use of the suit land. I believe the report of the scene visit will give a clearer picture as to who is on the ground.
7. As at now a stay order may elicit ambiguity as a question does arise as to whether the situation on the ground did change after the lapse of the 30 days from the time Judgment was delivered.
8. I decline to grant or extend any interim orders as at now.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 15TH DAY OF MAY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Mbaabu for appellant
Muriuki for respondent
Applicant
HON. LUCY. N. MBUGUA
ELC JUDGE