[2019] KEELC 3745 (KLR)
The court found that the application for stay of execution was not urgent in the absence of the applicant or his advocate. However, to preserve the subject matter of the appeal and prevent potential substantial loss to the applicant, a conditional stay of execution was granted for 30 days, provided the applicant...
Source-derived case information.
- Citation
- [2019] KEELC 3745 (KLR)
- Parties
- Appellant: Titus Mithika Gichunge; Respondent: Cyprian Kaberia M’Ibutu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 55 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted for 30 days upon deposit of Kshs. 500,000; application not certified urgent; costs in the cause.
- Legal Topics
- Stay of Execution, Fraudulent Transfer, Family Land Dispute
- 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
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment in CMCC 123 of 2014 pending appeal.
- 2 Whether the applicant will suffer substantial loss if the stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the application for stay of execution was not urgent in the absence of the applicant or his advocate. However, to preserve the subject matter of the appeal and prevent potential substantial loss to the applicant, a conditional stay of execution was granted for 30 days, provided the applicant deposits Kshs. 500,000 with the court within 14 days. The stay would lapse automatically unless extended or varied by the ELC Judge at Meru. The court also directed the applicant to serve the application on the respondent within 10 days and set the matter for directions before the ELC Judge. Costs were ordered to be in the cause.
Court Disposition
Conditional stay of execution granted for 30 days upon deposit of Kshs. 500,000; application not certified urgent; costs in the cause.
Orders
- The application is not certified urgent in view of the absence of the applicant and/or his advocate.
- The application will be heard on priority basis.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
MERU ELC APPEAL CASE NO. 55 OF 2019
TITUS MITHIKA GICHUNGE.....APPELLANT/APPLICANT
VERSUS
CYPRIAN KABERIA M’IBUTU........................RESPONDENT
RULING
1. This application is dated 9th April, 2019 and seeks orders:
1. That this honourable court be pleased to certify this application as urgent and dispense with service in the first instance.
2. That this honourable court be pleased to grant an order of stay of execution in respect to CMCC 123 of 2014 pending the hearing and determination of this application.
3. That this honourable court be pleased to grant an order of stay of execution in respect to CMCC 123 of 2014 pending the hearing and determination of this appeal.
4. That this honourable court be pleased to make any further orders in the interest of justice pending the hearing and determination of this appeal.
2. The application is supported by the applicant’s affidavit sworn on 9. 4.2019 AND has the following grounds:
1. That the learned magistrate erred in law and facts by ignoring that the transfer was fraudulent as the same was not executed by the applicant’s deceased father one Victoriano Gichunge.
2. That the suit land is family land and the appellant together with his mother and siblings have been in occupation of the land since the year 1978.
3. That the appellant is apprehensive that the respondent is likely to proceed with execution while this appeal is pending.
4. That the appellant shall suffer substantial loss as he will be evicted together with his mother and siblings from their family land.
5. That this appeal shall be rendered nugatory if the respondent proceeds with execution because the appellant will be evicted together with his mother and siblings from the family land.
6. That this application has been made without unreasonable and/or undue delay.
3. The apposite file was sent to Chuka via EMS. I have perused the application and I issue the following orders:-
a. The application is not certified urgent in view of the absence of the applicant and/or his advocate.
b. The application will be heard on priority basis.
c. Conditional stay of execution is granted for 30 days provided that the applicant will deposit with court a sum of Kshs.500,000/= within the next 14 days AND IT IS HEREBY CLARIFIED that this order will stand automatically spent on 13th May, 2019 UNLESSit will be further extended and/or howsoever varied by the Hon. Lady Justice Lucy Mbugua, J, the ELC Judge at Meru.
d. The applicant to properly serve the application upon the respondent within 10 days of today.
e. Directions will be taken before the ELC Judge at Meru on 13th May, 2019
4. Costs shall be in the cause.
Delivered at Chuka this 10th day of April, 2019 in the presence of:
CA: Ann
P. M .NJOROGE,
JUDGE.