[2012] KEHC 4724 (KLR)
The court found that although the merits of the intended appeal were not the primary concern at this stage, the applicant's right to appeal must be preserved. The court noted that the formula for subdivision of the property, as set out in the ruling of 4th November 2011, had not been agreed upon by the parties and...
Source-derived case information.
- Citation
- [2012] KEHC 4724 (KLR)
- Parties
- Plaintiff: Waithira Gichino; Defendant: Kamau Kaburu; Defendant: Ng’ang’a Kaburu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 427 of 1974
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- DO Ogembo
- Legal Topics
- Stay of Execution, Appeals, Subdivision of Land, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waithira Gichino
Plaintiff
Kamau Kaburu
Defendant
Ng’ang’a Kaburu
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the court's ruling/order pending appeal.
- 2 Whether substantial loss may result to the applicant if the stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that although the merits of the intended appeal were not the primary concern at this stage, the applicant's right to appeal must be preserved. The court noted that the formula for subdivision of the property, as set out in the ruling of 4th November 2011, had not been agreed upon by the parties and was capable of affecting the rights of all beneficiaries. If a stay was not granted, the respondents could subdivide the land and obtain new title deeds, thereby divesting the applicant of the substratum of her appeal and rendering it nugatory. Given the protracted history of the litigation and the need to finally resolve the dispute, the court exercised its discretion to grant...
Court Disposition
Application for stay of execution granted.
Orders
- Unconditional stay of execution of the Ruling/Order of this court issued on 4th November 2011 until the hearing and determination of the intended appeal to the Court of Appeal.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 427 OF 1974
WAITHIRA GICHINO.............................................................PLAINTIFF
VERSUS
KAMAU KABURU........................................................1ST DEFENDANT
NG’ANG’A KABURU....................................................2ND DEFENDANT
R U L I N G
Before the court is a Notice of Motion application dated 1st December 2011. It seeks a stay of execution of the Ruling/Order of this court issued on 4th November 2011 until the hearing and determination of the intended appeal to the court of appeal against the said Ruling.
The application is supported by the grounds stated therein among them that if the stay is not granted as prayed it will negate the whole intention of the appeal, which, is alleged to have good chances of success.
The application is supported by affidavit of the Plaintiff dated 1st December 2011. The main argument in the affidavit is that the suit relates to a parcel of land and if the stay is not granted, the Respondents shall subdivide the land and obtain new Title Deed and hence render the appeal nugatory.
The application is opposed. Grounds of opposition were filed in court on 14th March 2012. Among the grounds are that the appeal has no chances of success and that the present application is meant merely to further delay the matter, which has been outstanding since 1974.
I have looked at the application and also at the history of the matter. This matter has been in court since 1974 and it is understandable that the Plaintiff may want to see it end.
Order 42 Rule 6 of the Civil Procedure Rules 2010 gives the court the discretion to grant the orders sought. Order 42 6 (2) states:-
“No order for stay of execution shall be made under sub rule (1) unless –
(a) The court is satisfied that substantial loss may result to the Applicant unless the order of stay is made and that the application has been made without unreasonable delay; and
(b)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”
I am aware of the pain of litigants, and especially that of the Plaintiff, as this matter has taken far too long to be concluded. The Respondent has said that the appeal has no chances of success as the Ruling merely enforces previous orders of this court and which orders the Appellant has never appealed against. That may be so. However, at this stage, I am not duly concerned with the merits of the case for appeal. I am more concerned with the Appellant’s right to appeal. In this regard I have noted that the Ruling of this court of 4th November 2011 provided a formula to apply in dividing the property among all the beneficiaries. That formula is used to adjust rights to the property. The formula is capable of injuring rights of other parties, and, although this matter has been litigated upon, the formula for subdivision has never been agreed upon. The Applicant has a right to appeal against the said formula. That is not to say that I agree with the Applicant. In fact, I do not. The peculiar nature of this case however, demands that a stay be granted to the Applicant to enable the Applicant to appeal. I say this because the parties have been litigating over the issue since 1974 and a light is now at the end of the tunnel. The intended appeal will once and for all determine the issue. Although I find it unfair to prolong this matter any further, the Applicant is entitled to appeal, and denying the Applicant the stay sought would mean that the Respondents would subdivide the land, and have new titles issued thereby divesting the Applicant of the substratum of her appeal. In the interest of justice which must operate both ways, I allow the application and grant an unconditional stay of execution of the Ruling/Order of this court issued on 4th November 2011 until the hearing and determination of the intended appeal to the Court of Appeal. I make no orders on costs.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 8TH DAY OF MAY 2012.
E. K. O. OGOLA
JUDGE
PRESENT:
Muriithi for the Plaintiff
Thuo H/B Nyaga for the Defendants
Teresia – Court clerk