[2008] KEHC 1176 (KLR)
The court found that the defendants had satisfied the two key conditions for the grant of a stay of execution: the intended appeal was not frivolous and could be arguable, and if the stay was not granted, the appeal could be rendered nugatory due to the possible transfer of the suit land. Given the nature of the...
Source-derived case information.
- Citation
- [2008] KEHC 1176 (KLR)
- Parties
- Plaintiff: Wambui Njenga & 2 Others; Defendant: Mary Nduta Mtungi & 5 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1229 of 1993
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Appeals Process, Trusts in Land, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wambui Njenga & 2 Others
Plaintiff
Mary Nduta Mtungi & 5 Others
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the intended appeal is arguable and would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that the defendants had satisfied the two key conditions for the grant of a stay of execution: the intended appeal was not frivolous and could be arguable, and if the stay was not granted, the appeal could be rendered nugatory due to the possible transfer of the suit land. Given the nature of the dispute involving land and the defendants' expressed intention to appeal, the court exercised its discretion in favour of granting a stay of execution to preserve the subject matter until the appeal is determined. The court emphasized the importance of not denying parties the right to have their appeal heard, particularly in land matters where the consequences of execution may be...
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the judgment and decree delivered on 29th September 2006 is granted pending hearing and determination of the intended appeal.
- Costs of this application to be costs in the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1229 of 1993
WAMBUI NJENGA & 2 OTHERS…………………PLAINTIFFS
VERSUS
MARY NDUTA MTUNGI & 5 OTHERS………..DEFENDANTS
R U L I N G
This is the defendant’s application brought under Order XLI Rule 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking a stay of execution of the judgment and decree of this court delivered on 29th September 2006.
The facts are few and simple. The plaintiff’s claim a declaration that the defendant was registered as the proprietor of half of Land Parcel Githunguri/Gathangari/84 and held the same on behalf and in trust of the plaintiffs and in the alternative a declaration that the plaintiffs are entitled to the said one half of the suit land under adverse possession and that the aforesaid trust or claim for adverse possession be determined and the defendant do transfer to the plaintiff’s one half of the suit land.
After the hearing of the suit concluded the court made an order in terms of the claim as above. The defendants intend to appeal against the said order and the notice of appeal has been filed.
Pending such hearing of the appeal a stay is sought. The principles on which the court grants stay are well settled.
Two conditions have to be satisfied by the applicant: first, it must be shown that the intended appeal is arguable and, secondly, it must also be shown that if stay which is sought is withheld, the appeal will be rendered nugatory.
This being a land dispute and the defendants having expressed their desire to be heard by the Court of Appeal, they should not be denied the right to do so as was stated by the Court of Appeal (Tunoi JA) in the case of SAMPSON NDERITU KARITU V. MARTHA WATETU KARITU AND ANOTHER CA NO NAI 168 OF 2004.
According I exercise my discretion in favour of the applicants and grant the order as prayed.
Costs of this application be costs in the Appeal.
Dated and delivered at Nairobi this 17th day of October 2008.
J. L. A. OSIEMO
JUDGE