Case ID:165492

Registered Trustees of the Agricultural Society of Kenya (ASK) v Lake Basin Development Authority [2020] eKLR

Case Metadata

Case Number:

Civil Application 60 of 2020

Parties:

Registered Trustees of the Agricultural Society of Kenya (ASK) v Lake Basin Development Authority

Date Delivered:

23 Oct 2020

Case Class:

Civil

Court:

Court of Appeal at Kisumu

Case Action:

Ruling

Judge(s):

Roselyn Naliaka Nambuye, Daniel Kiio Musinga, Fatuma sichale

Citation:

Registered Trustees of the Agricultural Society of Kenya (ASK) v Lake Basin Development Authority [2020] eKLR

Case History:

(Being an appeal from the ruling of the High Court of Kenya at Kisumu (A.O. Ombwayo, J) dated 29th April, 2020 in ELC No. 49 of 2019)

Court Division:

Civil

County:

Kisumu

History Docket No:

ELC 49 of 2019

History Judges:

Antony Ombwayo

History County:

Kisumu

Case Outcome:

Notice of Motion disallowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT KISUMU

[CORAM: NAMBUYE, MUSINGA & SICHALE, JJ.A.]

CIVIL APPLICATION NO. 60 OF 2020

BETWEEN

THE REGISTERED TRUSTEES OF THE AGRICULTURAL

SOCIETY OF KENYA (ASK)......................................APPLICANT

AND

LAKE BASIN DEVELOPMENT

AUTHORITY.............................................................RESPONDENT

(Being an appeal from the ruling of the High Court of Kenya at

Kisumu (A.O. Ombwayo, J) dated 29

th

April, 2020

in

ELC No. 49 of 2019)

***********************

RULING OF THE COURT

1.

UPON

perusing the Notice of Motion dated

25

th

May, 2020

by the applicant, said to be brought under

Section 1A and 1B of the Civil

Procedure Act, Rule 5(2) of this Court’s Rules

where the applicant seeks an order of stay of execution of the ruling delivered on

29

th

April, 2020

by

Ombwayo, J.

in

ELC No. 49 of 2020

pending the hearing and determination of the intended appeal; and

2.

UPON

perusing the affidavit of

BATRAM MUTHUKA

, the Chief Executive Officer of the applicant, sworn on

25

th

May, 2020

in support of the application thereof; and

3.

UPON

perusing the affidavit of

DR. RAYMOND OMOLO

, the Managing Director of the respondent, sworn on

7

th

September, 2020;

and

4.

UPON

perusing the applicant’s submissions and its digest of authorities both dated

15

th

September, 2020

wherein it is submitted,

inter alia

, that both the applicant and the respondent are the allottees of the land, the subject of the dispute; that the trial court erred in granting a mandatory injunction at an interlocutory stage; that the applicant will suffer

“

significant loss

”, absent stay; and

5.

UPON

perusing the respondent’s submissions dated

7

th

September, 2020

in which it is submitted,

inter alia,

that the respondent has a superior title to the suit property; that an order of mandatory injunction was appropriately issued in the circumstances of the case; and

6.

HAVING

considered the principles that guide this Court in the determination of

Rule 5(2) (b)

applications as enunciated in

Stanley

Kang’ethe Kinyanjui vs. Tony Ketter & Others [2013] eKLR

; and noting that the applicant has established that it has an arguable appeal but has failed to establish that the intended appeal will be rendered nugatory given the fact that the order sought to be stayed is a negative order directing the applicant

“

…

to stop any activities ..

.”

on the suit property. ( See

Kenya Commercial Bank Limited vs. Tamarind Meadows Limited &

7 others [2016] eKLR );

and

having reached this conclusion, we make the following orders:

(i) The Notice of Motion dated

25

th

May, 2020

is disallowed.

(ii) The applicant shall bear the costs of this application.

Dated and Delivered at Nairobi this 23

rd

Day of October, 2020.

R. N. NAMBUYE

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

JUDGE OF APPEAL

D.K. MUSINGA

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

JUDGE OF APPEAL

F. SICHALE

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

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR