Case ID:166687

Hesbon K. Limisi v Delilah Achieng Mathews & 2 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land 1227 of 2013

Parties:

Hesbon K. Limisi v Delilah Achieng Mathews, Argwings Kodhek Ochiely & Chief Lands Registrar, Nairobi

Date Delivered:

19 Nov 2020

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Loice Chepkemoi Komingoi

Citation:

Hesbon K. Limisi v Delilah Achieng Mathews & 2 others [2020] eKLR

Court Division:

Environment and Land

County:

Nairobi

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

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC 1227 OF 2013

HESBON K. LIMISI.......................................................................PLAINTIFF/RESPONDENT

=VERSUS=

DELILAH ACHIENG MATHEWS...................................1

ST

DEFENDANT/RESPONDENT

ARGWINGS KODHEK OCHIELY......................................2

ND

DEFENDANT/APPLICANT

THE CHIEF LANDS REGISTRAR, NAIROBI...............3

RD

DEFENDANT/RESPONDENT

RULING

1.

This is the notice of motion dated 3

rd

March 2020 brought under section 1A, 3A and 63 (e) of the Civil Procedure Act, Order 42 Rule 6 (1) and Order 51 Rule 1 of the Civil Procedure Rule 2010.

2.

It seeks orders:-

(1) Spent.

(2) Spent.

(3) That there be a stay of execution of decree emanating from the judgment that was delivered on 6

th

February 2020 pending interparties hearing of this application.

(4) That this honourable court does issue such further orders or directions that it may deem fit to grant in the interest of justice.

(5) That the costs of this application be in the cause.

3.

The grounds are on the face of the application and are:-

(a) There is already judgment in favour of the plaintiff which was passed on 6

th

February 2020.

(b) The 2

nd

defendant is dissatisfied with the said judgment and has lodged a Notice of Appeal and will appeal to the Court of Appeal against the said judgment.

(c) The 2

nd

defendant therefore makes this application seeking interim stay of execution of the judgment pending the hearing of this application inter-parties and subsequently pending the hearing of the 2

nd

defendant’s Intended Appeal.

(d) The 2

nd

defendant has already applied for typed copies of proceedings to enable him to prosecute his appeal with the shortest time possible.

(e) If an order for stay is not granted, the 2

nd

defendant will suffer substantial loss since he will be evicted from the suit property and he will be deprived of his property which he validly and lawfully purchased from the 1

st

defendant.

(f) If stay of execution is not granted, the 2

nd

defendant’s intended appeal will be rendered nugatory as the plaintiff will move to evict him and cause the registration of the property in his (the plaintiff’s) name and in the event that the 2

nd

defendant’s appeal succeeds he will be forced to go to court and seek orders of deregistration of the plaintiff and further orders of eviction. This will occasion a lot prejudice of substantial loss.

(g) The 2

nd

defendant is ready to provide security for due performance as may be ordered by the court.

4.

The application is supported by the affidavit of Argwings Kodhek Ochiely, the 2

nd

defendant/applicant sworn on the 3

rd

March 2020 and a further affidavit sworn on the 31

st

August 2020.

5.

The application is opposed. There is a replying affidavit sworn by Hesbon K. Limisi the plaintiff/respondent sworn on the 17

th

July 2020 and a further affidavit sworn on the 13

th

August 2020.

6.

On the 21

st

July 2020, the court with the consent of the parties directed that the application be canvassed by way of written submissions.

7.

It is the 2

nd

defendant/applicant’s submissions that there is an order directing the 3

rd

defendant to effect transfer of this suit property to the plaintiff. That there is also an active order for payment of mesne profits and an order for payment of general damages of Kshs.300,000/-.

8.

It is further the 2

nd

defendant’s submissions that as a way of providing security for due performance of the decree under order 42, he has ceded possession of the house on a without prejudice basis. That if the registration of the house is effected in the name of the plaintiff and if mesne profits are paid he will suffer substantial loss in the event his appeal is allowed. He has put forward the cases of

Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another [1986] KLR; Sewankambo Dickson vs Ziwa Abby HCT-00-CC MA 0178 of 2005.

9.

He further submitted that the act of transfer of the house to the plaintiff involves actions which are to be done by the 3

rd

defendant and as submitted in the event the appeal succeeds, the 2

nd

defendant will be forced to commence other proceedings to reverse the act and thus incur costs that are preventable by the grant of an order of stay

.

10.

The 2

nd

defendant has ceded possession of the house as a form of security for due performance. This amounts to sufficient security for due performance.

11.

The application for stay was made without undue delay given that the judgment was delivered on 6

th

February 2020. He prays that the application be allowed.

12.

It is the plaintiff’s/respondent’s submission that the 2

nd

defendant’s/applicant’s application does not conform with the mandatory provisions of law as set out under order 42 rule 6(1) and (2) of the Civil Procedure Rules.

13.

That no, order of stay of execution should be granted unless the 2

nd

defendant/applicant is ordered to deposit Kshs.2,760,000/- in the joint interest earning account of both parties’ counsel. He has put forward the case of

Governors Balloon Safaris Ltd vs Skyship Company Ltd & Another CA Civil Application NO. Nai 32 of 2015; Kenya Shell Ltd vs Benjamin Karanja Kibiru & another CA Civil Application Nai 97 of 1986.

14.

He prays that the 2

nd

defendant’s/applicant’s application be dismissed with costs.

15.

I have considered the notice of motion, the affidavits in support and the replying affidavit. I have also considered the written submissions filed on behalf of the parties and the authorities cited. The issues for determination are:-

(i) Whether the 2

nd

defendant’s/applicant’s application meets the threshold for grant of orders of stay of execution pending appeal.

(ii) Who should bear costs?

16.

The principles guiding the grant the stay of execution pending appeal are well settled.

Order 42 rule 6(2)

of the Civil Procedure Rules provides that:-

“

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 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.”

17.

It is clear from the above provision that for an order of stay of execution to be granted, specific conditions must be met by the applicant.

18.

I have considered the notice of motion herein. I find that it has been brought without unreasonable delay.

19.

It is not in dispute that the 2

nd

defendant/applicant has ceded possession of the house to the plaintiff/respondent. In paragraph 3 of the further affidavit of Hesbon K. Limisi sworn on the 13

th

August 2020, he states,

“That on 12

th

August 2020

the 2

nd

defendant/applicant in the presence of the provincial administration officials in Langata (the area chief and the area county commissioner) willingly handed over the suit premises to myself and I am currently in occupation of the same effective 12

th

August 2020 (annexed hereby and marked exhibit ‘HKL1’ is a copy of the document by the 2

nd

defendant/applicant signing off the suit premises to myself)”.

This has been confirmed by the 2

nd

defendant/applicant.

20.

It is the 2

nd

defendant’s/applicant’s case that he stands to suffer substantial loss should the 3

rd

defendant effect transfer in favour of the plaintiff before the appeal is heard and determined. The plaintiff/respondent on the other hand contends that the application has been overtaken by events as the 2

nd

defendant/applicant has ceded possession of the house to the plaintiff.

21.

I note that there is also an order for the 2

nd

defendant to pay general damages and mesne profits. I am of a view that he has demonstrated good faith by ceding possession of the house to the plaintiff/respondent.

22.

In the case of

Feisal Amini Jan Mohammed t/a Dunvia Forwarders vs Shami Trading Co. Ltd MSA HC Civil Appeal No. 65 of 2013 [2014] eKLR Kasango

J stated as follows:-

“It is trite law therefore that a stay of execution order is generally granted if the applicant has successfully demonstrated that a substantial loss that may result to him unless the order is made, that the application is made without unreasonable delay and that the applicant has offered proper security”.

23.

I am guided by the above authority.

24.

I have considered the circumstances of this case. I find that the 2

nd

defendant’s/applicant’s application meets the requirements as set out under order 42 rule 6 of the Civil Procedure Rules.

25.

In conclusion, I find merit in this application and I grant the orders sought namely:

(a) That an order of stay of execution of the decree emanating from the judgment delivered on 6

th

February 2020 is hereby granted pending the hearing and determination of the intended appeal on condition that the 2

nd

defendant/applicant do deposit a sum of Kshs.200,000 in the joint interest earning account of both parties’ counsel within forty five (45) days from the date of this ruling. In default the orders of stay shall lapse.

(b)

That costs of this application do abide the outcome of the appeal

.

It is so ordered.

Dated, signed and delivered in Nairobi on this 19

th

day of November 2020.

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

No appearance for the Plaintiff/Respondent

No appearance Respondent/Applicant

No appearance for the 3

rd

Respondent

Phyllis - Court Assistant