[2021] KEELC 324 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO. 281 OF 2009

ZAKARIA MUIGAI GAKIBE..............................................................................PLAINTIFF

VERSUS

JOHN MWENJA NGUMBA sued as the Administrator of

The Estate of Andrew Kimani Ngumba....................................................1ST DEFENDANT

KENYA COMMERCIAL BANK LIMITED..............................................2ND DEFENANT

ROYAL BUILDERS AND INVESTMENTS LIMITED...........................3RD DEFENANT

THE ATTORNEY GENERAL on behalf of

THE COMMISSIONER FOR LANDS.....................................................4TH DEFENDANT

EQUITY BANK LIMITED...........................................................................5TH DEFENANT

RULING

1. This is the Notice of Motion dated 8th September 2021 brought under sections 3A and 95 of Civil Procedure Act Cap 21 Laws of Kenya, order 50 rule 6 Civil Procedure Rules.

2. It seeks orders:-

1. Spent.

2. That this honourable court be pleased to extend the order of stay of execution granted on 29th July 2021 by a further sixty (60) days.

3. The costs hereof be in the cause.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 7.

4. The application is supported by the affidavit of Zacharia Muigai Gakibe, the Plaintiff/Applicant, sworn on the 8th September 2021.

5. The application is opposed. There is a replying affidavit sworn by the 1st Defendant/Respondent, on the 8th October 2021. The 3rd Defendant/Respondent also filed a replying affidavit. The 5th Defendant/Respondent did not file any response but Ms Kiuluki stated that the 5th Defendant/Respondent wished to associate itself with the 1st and 3rd Defendant’s/Respondent’s responses and submissions.

6. The Application was canvassed by oral submissions on the 11th November 2021.

7. I have considered the notice of motion and the affidavit in support. I have considered the responses and the rival submissions. The issue for determination is whether this application is merited.

8. The notice of motion is brought under section 3A and 95 of the Civil Procedure Act and order 50 rule 6 of the Civil Procedure Rules.Section 95 of the Civil Procedure Act provides that:-

“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

9. I agree with counsel for the 3rd Defendant’s/Respondent’s submissions that the application is fatally defective having been brought under the wrong provisions of the law. From the submissions of the Plaintiff’s counsel it is clear that the Plaintiff seeks stay of execution pending appeal and/or the application in the Court of Appeal.

10. This court delivered judgment on the 29th July 2021. This court in its own motion granted the Plaintiff forty-five (45) days stay of execution. I find that this was enough time to enable him to pursue other avenues in the Court of Appeal. This court is functus officio as there is nothing left for this court to do.

11. There is no application for stay of execution pending appeal before this court for consideration. The orders of stay of execution granted by this court on 29th July 2021 lapsed after 45 days. Court orders are not issued in vain.

12. I find no merit in this application and the same is dismissed with costs to the 1st, 3rd and 5th Defendants/Respondents.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 2ND DAY OF DECEMBER 2021.

...........................

L. KOMINGOI

JUDGE

IN THE PRESENCE OF:-

MR. KYALO MBOBU FOR THE PLAINTIFF

MS KEMBOY FOR MR. NYAIRO FOR THE 1ST DEFENDANT ALSO HOLDING BRIEF FOR MR. CHEGE FOR THE 3RD DEFENDANT.

MR. KAULA FOR THE 2ND DEFENDANT

NO APPEARANCE FOR THE 4TH DEFENDANT

MS CHERUIYOT FOR THE 5TH DEFENDANT

STEVE - COURT ASSISTANT