Case ID:177726

Jacob Njeru Karuku v Jacob Njeru Karuku [2021] eKLR

Case Metadata

Case Number:

Environment and Land Appeal Case E003 of 2021

Parties:

Jacob Njeru Karuku v Jacob Njeru Karuku

Date Delivered:

28 Jun 2021

Case Class:

Civil

Court:

Environment and Land Court at Chuka

Case Action:

Ruling

Judge(s):

Peter Muchoki Njoroge

Citation:

Jacob Njeru Karuku v Jacob Njeru Karuku [2021] eKLR

Advocates:

Muthomi Gitari for the Respondent

Court Division:

Environment and Land

County:

Tharaka Nithi

Advocates:

Muthomi Gitari for the Respondent

Extract:

0

History Advocates:

One party or some parties represented

Case Outcome:

Application dismissed.

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 CHUKA

CHUKA ELC APPEAL CASE NO. E003 OF 2021

JACOB NJERU KARUKU.............................................................................APPELLANT

VERSUS

NJAGI NJUGUNA.......................................................................................RESPONDENT

RULING

1. This application is dated

2

nd

June, 2021

and it has been brought to court under Article 159 of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of Civil Procedure Act, Cap 21, Laws of Kenya, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, the inherent powers of the court and all other enabling provisions of the law.

2. The application seeks the following orders:

1.THAT

this Application be heard

ex parte

in the first instance in view of its urgent nature.

2.THAT

pending the hearing and determination of the Application dated

12

th

April, 2021

this Honourable Court be pleased to Order stay of execution of the Ruling delivered by the Honourable N Kahara (SRM) on 8

th

April, 2021

in Chuka LDT 15 of 2009

and any Order arising therefrom.

3.THAT

the costs of this Application be provided for.

3.

The

application is supported by the affidavit of Nimrod Matunda, the applicant’s advocate, and has the following grounds:

1.ON

11

th

April, 2021 the Honourable Court considered the Notice of Motion dated 12

th

April, 2021 and fixed the same for directions on 14

th

June, 2021.

2.UNFORTUNATELY,

the Respondent herein has made deliberate plans, obtained eviction orders from the lower court and has embarked on a mission to evict the Appellant on 8

th

June, 2021 in order to circumvent and defeat the hearing of the Application dated 12

th

April, 2021 and ultimately render the intended Appeal nugatory.

3.THE

Appellant is therefore justifiably apprehensive that unless the Honourable Court intervenes now and grants an Order of Staying the planned eviction, the Respondent will

proceed to execute against the Appellant on 8

th

June, 2021

and evict him thereby occasioning the Appellant substantial loss and rendering the Appeal an academic exercise.

4.THERE

is real and imminent danger that unless prayer 3 on the Notice of Motion dated 12

th

April, 2021 as sought is granted in the first instance, the Respondent shall execute before the filed Appeal is heard and determined thereby exposing the Appellant to irreparable loss and damage and further render the appeal nugatory and merely academic.

5.THE

Appellant therefore seeks the intervention of the Honourable Court, to stay in the interim the intended eviction in term of prayer 3 on the substantive application dated 12

th

April, 2021 until when parties appear before court on 14

th

June, 2021 for further directions.

6.IF

the Honourable court does not intervene as a matter of urgency and stay the implementation of the impugned ruling the law of the jungle will take precedent whereof the appellant will be evicted.

7.THIS

Application is not frivolous; it is arguable and has been brought without unreasonable delay.

4. When the matter came up for directions on

28.6.2021

, the applicant and his advocate were not in court. The respondent’s advocate, Mr. Muthomi Gitari, told the court that this court had on

7.6.2021

granted the appellant a conditional stay of execution on condition that the appellant deposited with court, as security the sum of Kshs.500,000/= within 14 days. Mr. Gitari brought to the attention of the court this court’s Deputy Registrar’s letter dated

24

th

June, 2021

in which she confirmed that the appellant had not complied with the apposite court’s order. For this reason, he asked the court to dismiss the appellant’s application.

5. I find as a fact that the appellant has not complied with the court order that a sum of Kshs.500,000/= being deposit for security be deposited with court within the stipulated time.

6. In the circumstances, I find the application by the respondent’s advocate that the application be dismissed is meritorious. The following orders are issued:

a) Application dated

2.6.2021

is dismissed with the effect that the conditional stay of execution stands vacated and costs are awarded to the respondent.

b) The Appellant is directed to file and serve the record of Appeal

within 14 days of today.

c) As he has undertaken, Mr. Muthomi, the respondent’s advocate to serve the orders issued today upon the appellant’s advocate

within 7 days of

today.

d)

Directions

on

26.7.2021

.

DELIVERED IN OPEN COURT AT CHUKA THIS 28TH DAY OF JUNE, 2021 IN THE PRESENCE OF:

CA: Ndegwa

Muthomi Gitari for the Respondent

P. M. NJOROGE,

JUDGE.