[2011] KEHC 3162 (KLR)
The court found that, considering both the appellants' risk of eviction and the respondent's concession, a stay of execution should be granted to preserve the subject matter of the appeal. However, the stay should not operate to displace any party from the portions of land they occupied prior to the judgment. The...
Source-derived case information.
- Citation
- [2011] KEHC 3162 (KLR)
- Parties
- Appellant: Turibu Mberia; Appellant: Mutuma Mberia; Appellant: Kaviria M’Birithia (Legal representative of M’Birithia M’Ithiringa); Respondent: Margaret Kiinge
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Stay Pending Appeal
- Outcome
- Stay of execution granted with maintenance of status quo.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Pending Appeal, Land Transfer Orders, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Turibu Mberia
Appellant
Mutuma Mberia
Appellant
Kaviria M’Birithia (Legal representative of M’Birithia M’Ithiringa)
Appellant
Margaret Kiinge
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Pending Appeal
Legal Issues
- 1 Whether to grant a stay of execution of the judgment pending appeal.
- 2 Whether the parties should be allowed to continue occupying the portions of land as before the judgment.
- 3 Whether granting stay would prejudice either party.
Ratio Decidendi
The court found that, considering both the appellants' risk of eviction and the respondent's concession, a stay of execution should be granted to preserve the subject matter of the appeal. However, the stay should not operate to displace any party from the portions of land they occupied prior to the judgment. The court thus ordered a stay of the transfers but maintained the status quo regarding occupation, ensuring that neither party is prejudiced pending the determination of the appeal.
Court Disposition
Stay of execution granted with maintenance of status quo.
Orders
- Stay of transfers ordered in CMCC Meru 983 of 1998 of parcels number Athinga/Athanga/5466 and 5593.
- Stay does not displace either party from portions they occupied and used prior to the judgment; all parties to continue occupying their respective portions.
Full Case Text
Judgment text and source record
20 paragraphs
CIVIL PRACTICE AND PROCEDURE
·Stay pending appeal.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HIGH COURT CIVIL APPEAL CASE NO. 27 OF 2010
TURIBU MBERIA ………..…………………………….. 1ST APPELLANT
MUTUMA MBERIA …………………………………… 2ND APPELLANT
KAVIRIA M’BIRITHIA (Legal representative of
M’Birithia M’Ithiringa)……………………………… 3RD APPELLANT
VERSUS
MARGARET KIINGE ……………………………….. RESPONDENT
RULING
The appellant filed his appeal against the judgment in CMCC Meru No. 983 of 1998 delivered on 3rd March 2010. The appellant by Notice of Motion dated 14th June 2010 seeks stay of execution of that judgment pending appeal. The appellants deponed in their supporting affidavit that their appeal has high chances of success. That if stay of execution is not granted the respondent will evict them from their commercial property. That the chief magistrate court by its judgment ordered the transfer into the respondent’s name parcel number Athinga/Athanga/5456 (whole) and 0. 02 of parcel number Athinga/Athanga/5593. The application for stay of execution was opposed by the respondent and prayed in her replying affidavit that this court would order the parties to continue using the land they have been using pending appeal. The respondent argued to grant the orders of status quo may lead to her and her son’s eviction from the commercial property which is on the suit property. Having considered the application and having also considered the concession made by the respondent I grant the following orders:-
1. The court does hereby stay the transfers ordered in CMCC Meru 983 of 1998 of parcels number Athinga/Athanga/5466 and 5593.
2. The orders of stay in number (1) above cannot operate to displace either the appellants or the respondents from the portions they occupy and used prior to the judgment of CMCC Meru 983 of 1998 delivered on 3rd March 2010. All parties are to continue occupying the portions they have occupied prior to that judgment.
3. The costs of the Notice of Motion dated 14th June 2010 shall be in cause.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE