[2015] KEHC 6031 (KLR)
The court found that the orders of 2nd December 2014 by the Chief Magistrate effectively granted substantive relief (eviction) without giving the applicants an opportunity to present their evidence, which was contrary to the principles of natural justice. Furthermore, the court noted that the suit property had...
Source-derived case information.
- Citation
- [2015] KEHC 6031 (KLR)
- Parties
- Applicant: Vincent Egesa Nyongesa; Applicant: Florentius Juma Nyongesa; Respondent: Francis Mukhulu Omengo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2015
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Application for stay of execution and inhibition order granted.
- Legal Topics
- Stay of Execution, Eviction Orders, Interlocutory Injunctions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Egesa Nyongesa
Applicant
Florentius Juma Nyongesa
Applicant
Francis Mukhulu Omengo
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the orders of eviction granted by the Chief Magistrate were made without affording the parties an opportunity to tender evidence.
- 2 Whether a stay of execution and inhibition order should be granted to preserve the suit property pending appeal.
Ratio Decidendi
The court found that the orders of 2nd December 2014 by the Chief Magistrate effectively granted substantive relief (eviction) without giving the applicants an opportunity to present their evidence, which was contrary to the principles of natural justice. Furthermore, the court noted that the suit property had changed ownership after the impugned orders, raising the risk that the appeal could be rendered nugatory if the property was not preserved. To ensure justice and maintain the status quo pending the hearing of the appeal, the court exercised its discretion to stay the execution of the Chief Magistrate's orders and issued an inhibition order on the title under Section 68 of the Land...
Court Disposition
Application for stay of execution and inhibition order granted.
Orders
- The orders issued by Hon. J.M. Maragia, Resident Magistrate on 2nd December, 2014 in Busia CMCC. No. 437 of 2014 are stayed pending hearing of the appeal.
- An inhibition order on the title of the suit property is issued under Section 68 of the Land Registration Act, 2012, pending the hearing of this appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
HIGH COURT CIVIL APPEAL NO. 1 OF 2015
VINCENT EGESA NYONGESA……………………..APPLICANTS
FLORENTIUS JUMA NYONGESA
VERSUS
FRANCIS MUKHULU OMENGO …………………..RESPONDENT
R U L I N G
VINCENT EGESA NYONGESA and FLORENTIUS JUMA NYONGESA hereinafter referred to as 1st and 2nd Applicants filed the notice of motion under certificate of urgency dated 16th January, 2015 against FRANCIS MUKHULU OMENGO,hereinafter referred to as the Respondent for among others the following orders;
‘’ 3. That pending the hearing of this application interpartes there be stay of the Chief Magistrate’s order in Chief Magistrate Civil Case No. 437 of 2014…………..issued on 2nd December, 2014.
4. That the Ruling and orders of the Chief Magistrate’s Civil Case No. 437 of 2014 be suspended pending the hearing and determination (of) this appeal.’’
The application is based on the six grounds on the face of the application and the supporting affidavit of the 2nd Applicant sworn on 16th January, 2014 (2015).
The application is opposed by the Respondent, who filed a replying affidavit sworn on 26th January, 2015 and another affidavit of Mathias Imbwagh sworn also on 26th January, 2015.
This application had been filed contemporaneously with the memorandum of appeal dated 16th January, 2015 on the order of Hon. Maragia, Resident Magistrate, of 2nd December, 2014 in CMCC. No. 437 of 2014.
I have considered the grounds of the application, submissions by both counsel, the supporting, replying and witness evidence affidavits and find as follows;
That by the plaint dated 28th October, 2014, the Respondent filed a claim against the Applicants in Busia CMCC. No. 437 of 2004 praying for a declaration that the Applicants had trespassed onto Bukhayo/Bugengi/2987 and should be evicted.
That even though the copy of the defence filed by the Applicants, if any has been filed, has not been availed in these proceedings, it is clear the Applicants had opposed the application dated 28th October, 2014 by filing a replying affidavit. This is discernable from the submissions made on 11th November, 2014. (see copy of the proceedings attached to the supporting affidavit)
That the orders of 2nd December, 2014 had the effect of granting part of prayer (a) of the plaint (eviction) without affording the parties the opportunity to tender evidence.
That noting that the Respondent appear to have transferred ownership of the suit land to Roselyne Barasa on 23rd December, 2014 as confirmed by the copies of the certificates of official search annexed to the replying affidavits, the court finds that it is only fair and just to issue appropriate orders to ensure the suit property is preserved as the appeal filed herein is heard. The following orders are therefore issued;
That the orders issued by Hon. J.M. Maragia, Resident Magistrate on 2nd December, 2014 in Busia CMCC. No. 437 of 2014 be and are hereby stayed pending hearing of the appeal.
That in view of the fact that the suit property has changed ownership since the order of 2nd December, 2014, an inhibition order on the title in terms of Section 68 of the Land Registration Act, 2012, is issued pending the hearing of this appeal.
S.M. KIBUNJA,
JUDGE.
DATED AND DELIVERED ON 24th DAY OF FEBRUARY, 2015.
IN THE PRESENCE OF; PRESENT …………..1ST APPLICANT
PRESENT ………….2ND APPLICANT
PRESENT……………RESPONDENT
MR. FWAYA FOR KASAMANI FOR THE APPELLANTS/APPLICANTS.
JUDGE