Case ID:184741

Grace Karamana v Fridah Mwari & another [2021] eKLR

Case Metadata

Case Number:

Appeal 65 of 2021

Parties:

Grace Karamana v Fridah Mwari & M’ikiara M’mbogori

Date Delivered:

03 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Grace Karamana v Fridah Mwari & another [2021] eKLR

Advocates:

Mrs. Otieno for 1st respondent

Mwongela for appellant

Case History:

(Being an appeal from the Judgment of Hon. Susan Ndegwa (S.P.M.) delivered on 18th May, 2021, in Githongo P.M.C’S ELC No. 18 of 2018)

Court Division:

Environment and Land

County:

Meru

Advocates:

Mrs. Otieno for 1st respondent

Mwongela for appellant

History Docket No:

ELC No. 18 of 2018)

History Magistrate:

Hon. Susan Ndegwa (S.P.M.)

History Advocates:

Both Parties Represented

Case Outcome:

Appeal 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 MERU

ELC APPEAL NO. 65 OF 2021

GRACE KARAMANA........................................................................APPELLANT

VERSUS

FRIDAH MWARI ....................................................................1

ST

RESPONDENT

M’IKIARA M’MBOGORI....................................................2

ND

RESPONDENT

(Being an appeal from the Judgment of Hon. Susan Ndegwa (S.P.M.) delivered on 18

th

May, 2021, in Githongo P.M.C’S ELC No. 18 of 2018

)

RULING

1. By an application dated

30/6/2021

the appellant seeks stay of execution of the judgment delivered in

Githongo PMC ELC No. 18 of 2018

on

17/5/2021

pending hearing and determination of this appeal.

2. The application is supported by an affidavit sworn by the appellant on

30/6/2021

on the grounds that she lives on the suit land which is registered under her deceased husband

Edward Kirimi

; and that the application has been brought without delay.

3. The appellant submits she was vested with the suit land vide

Meru High Court Succession Cause No. 298 of 2003

which decree the lower court in her view overlooked. She believes her appeal has high chances of success.

4. The respondents have opposed the application through preliminary objections dated

21/6/2021

and

24/9/2021

on the basis that the appeal offends

Order 9 Rule 9

of the

Civil Procedure Rules

.

5. In

Tobias M. Wafubwa –vs- Ben Butali [2017] eKLR

the Court of Appeal held once a judgment is entered, an appeal, before an appellate court is not a continuation of the proceedings in the lower court. It is the court’s view a commencement of a new proceeding in a court operating under different rules in which a party has a right to choose new legal representation.

6. In my view and being bound by the above decision I find both the appeal and this application as competently before the court.

7. Turning to the request for stay of execution, a party seeking stay under

Order 42 Rule 6 (1)

of the

Civil Procedure Rules

has to demonstrate substantial loss; that there has been no inordinate delay in lodging the application and that he is willing to offer security for due performance of the decree.

8. In

Godfrey Wainaina Kinaynjui & Another –vs- Joseph Kwikya Musaa [2020]eKLR

it was held the applicant must not only make assertions but also offer empirical documentary evidence to support such contention. The court carries out a balancing exercise to ensure justice and fairness thrive within the corridors of power.

9. In the instant case other than the appellant saying she has lived on the suit land for decades and her family will suffer irreparable harm, will be rendered destitute or homeless, she has offered no documents to substantiate those claims.

10. Similarly, the appellant has not demonstrated if there is any threatened or impeding execution by way of notices to that effect. In the premises I find the application lacking merit. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 3

RD

DAY OF NOVEMBER, 2021

IN PRESENCE OF:

MRS. OTIENO FOR 1ST RESPONDENT

ONYARI HOLDING BRIEF FOR MWONGELA FOR APPELLANT

COURT CLERK: KANANU

HON. C.K. NZILI

ELC JUDGE