[2023] KEHC 19893 (KLR)
The court found that the only issue pending before it was the taxation of the respondents' Bill of Costs, and that the Court of Appeal had already issued a status quo order restraining eviction from the disputed land until the appeal is determined. The High Court held that proceeding with taxation and recovery of...
Source-derived case information.
- Citation
- [2023] KEHC 19893 (KLR)
- Parties
- Applicant: Jackton Oyaro Woga; Applicant: Elkanah Nyariro; Applicant: Jane Awino Woga; Applicant: Risper Ajwang Nyandat; Respondent: Jackton Oyiengo Osura; Respondent: Allan Okatch Osura; Respondent: Professor Willis Kosura; Respondent: National Land Commission; Respondent: The Director Of Survey Kenya; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 20 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed. Taxation of Bill of Costs stayed pending appeal. File closed.
- Judges
- RE Aburili
- Legal Topics
- Eviction Orders, Stay of Proceedings, Status Quo Orders, Taxation of Costs, Right to Property, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jackton Oyaro Woga
Applicant
Elkanah Nyariro
Applicant
Jane Awino Woga
Applicant
Risper Ajwang Nyandat
Applicant
Jackton Oyiengo Osura
Respondent
Allan Okatch Osura
Respondent
Professor Willis Kosura
Respondent
National Land Commission
Respondent
The Director Of Survey Kenya
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the court should stay taxation proceedings pending the determination of the Court of Appeal Civil Appeal No. 80 of 2019.
- 2 Whether the status quo order from the Court of Appeal should be adopted in this matter.
- 3 Whether the applicants are entitled to a stay of proceedings regarding recovery of costs awarded to the respondents.
Ratio Decidendi
The court found that the only issue pending before it was the taxation of the respondents' Bill of Costs, and that the Court of Appeal had already issued a status quo order restraining eviction from the disputed land until the appeal is determined. The High Court held that proceeding with taxation and recovery of costs could prejudice the applicants and potentially render the appeal nugatory. In the absence of any opposition from the respondents, and in light of the superior court's order, the High Court determined that it was just and proper to stay all proceedings, including taxation, until the appeal is heard and determined. The file was marked as closed, and no further action would be...
Court Disposition
Application for stay of proceedings allowed. Taxation of Bill of Costs stayed pending appeal. File closed.
Orders
- There shall be stay of taxation of Bill of Costs filed by the Respondent in this matter pending the hearing and determination of Kisumu Court of Appeal Civil Appeal No. 80 of 2019.
- This file is marked as closed as no other action shall be taken until the determination of the Court of Appeal matter.
Full Case Text
Judgment text and source record
45 paragraphs
Woga & 3 others v Osura & 5 others (Petition 20 of 2018) [2023] KEHC 19893 (KLR) (30 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19893 (KLR)
Republic of Kenya
In the High Court at Kisumu
Petition 20 of 2018
RE Aburili, J
June 30, 2023
Between
Jackton Oyaro Woga
1st Petitioner
Elkanah Nyariro
2nd Petitioner
Jane Awino Woga
3rd Petitioner
Risper Ajwang Nyandat
4th Petitioner
and
Jackton Oyiengo Osura
1st Respondent
Allan Okatch Osura
2nd Respondent
Professor Willis Kosura
3rd Respondent
National Land Commission
4th Respondent
The Director Of Survey Kenya
5th Respondent
The Attorney General
6th Respondent
Ruling
IN THE MATTER OF ARTICLE 2, 3, 10, 21, 22, 23, 27, 28, 29, 35, 40, 43, 45, 47, 63, 65, 156, 165(3), 258 OF THE CONSTITUTION OF KENYAIN THE MATTER OF CONTRAVENTION AND/OR APPREHENDED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMSANDIN THE MATTER OF EVICTION ORDERS ON PARCEL NO.111 OF 1973 OTHER JUDGEMENTS AND DECREE HEREINANDIN THE MATTER OF BREACH OF PROPRIETORY RIGHTS AND OWNERSHIP RIGHTSJACKTON OYARO WOGA.....…………….……...………...1STPETITIONERELKANAH NYARIRO………………………………….....…2NDPETITIONERJANE AWINO WOGA……………………………………….3RDPETITIONERRISPER AJWANG NYANDAT…………………………...…4THPETITIONER-VERSUS-JACKTON OYIENGO OSURA..…………………………...1STRESPONDENTALLAN OKATCH OSURA……………………………...…2NDRESPONDENTPROFESSOR WILLIS KOSURA…………….……..……..3RDRESPONDENTNATIONAL LAND COMMISSION…………………...…..4THRESPONDENTTHE DIRECTOR OF SURVEY KENYA…………….……5THRESPONDENTTHE ATTORNEY GENERAL……………………………..6THRESPONDENTRULING 1. This Ruling determines the Applicant’s/Petitioner’s application dated June 12, 2023 supported by the affidavit of Jackton Oyaro Woga the 1st Petitioner herein on behalf of all the other 3 Petitioners.
2. The application seeks for stay of those proceedings pending the hearing and determination of the Petitioner’s Court of Appeal Civil Appeal No. 80 of 2019 and that this court adopts the order of the Court of Appeal in Civil Application No. 3 of 2019 granting the orders of status quo until the appeal No. 80 of 2019 is heard and determined.
3. The applicants also pray that costs abide the outcome of the appeal. The applicant’s case is that vide Ruling rendered on 6th December 2018, the Petition was struck out with costs to the Respondents and the application for stay of Notice to Show Cause in Kisumu HCC No. 111 of 1973 was also dismissed.
4. The applicants sought and obtained leave to appeal and vide an order made by the Court of Appeal Civil Application No. 3 of 2019, the Court of Appeal ordered for status quo as far as eviction of the applicants from East Gem/Nyadhiwa/574 is concerned, until the hearing and determination of Kisumu Court of Appeal Civil Appeal No. 80 of 2019. This was on 30th October 2019.
5. The applicants therefore pray that the proceedings pending in this file, which basically involve taxation and recovery of costs awarded to the Respondents, be stayed until the appeal pending before the Court of Appeal is heard and determined.
6. The application was served upon the Respondents’ counsel but no response was filed and this court proceeded to hear counsel for the applicant orally on 21st June 2023.
7. Mr. Mwamu counsel for the applicants argued that application reiterating the prayers and grounds as supported by the 1st applicant’s affidavits which I have considered.
8. I observe that the only issue pending in this court is taxation of the Respondent’s Bill of Costs dated August 25, 2021 which is drawn at Kshs.3,945,000. The issues at hand involve eviction from land parcel No. East Gem/Nyadhiwa/574.
9. The Applicants lost the petition and application for stay of Notice to Show Cause why they cannot be evicted from the above parcel of land upon which they filed Court of Appeal Civil Appeal No. 80 of 2019 and vide Civil Application No. 3 of 2019, the Court of Appeal ordered for status quo to be maintained such that no eviction would ensure against the applicants from the above cited parcel of land.
10. That being the case, and as the Court of Appeal has already stayed the eviction of the applicants from parcel No. East Gem/Nyadhiwa/574, I find this application for stay of proceedings in this matter merited.
11. I order that there shall be stay of taxation of Bill of Costs filed by the Respondent in this matter pending the hearing and determination of Kisumu Court of Appeal Civil Appeal No. 80 of 2019.
12. Consequently, this file is marked as closed as no other action shall be taken until the determination of the Court of Appeal matter.
13. This file should be submitted to the Court of Appeal for fast tracking of the Court of Appeal matter as ordered in Civil Application No. 3 of 2019.
14. File closed.
Dated, Signed and Delivered at Kisumu this 30th Day of June, 2023R. E. ABURILIJUDGE