Case ID:184813

Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case E048 of 2021

Parties:

Zacharia Kiburi M’Tharanju v Jacob M’Manyara

Date Delivered:

03 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Ruling

Judge(s):

Christopher Kyania Nzili

Citation:

Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] eKLR

Advocates:

Mutisya for respondent

Ndubi for appellant

Case History:

Being an appeal from the Judgment of Hon. G. Sogomo (P.M.) delivered on 18th March, 2020, in Tigania P.M. E&L No. 53 of 2017

Court Division:

Environment and Land

County:

Meru

Advocates:

Mutisya for respondent

Ndubi for appellant

History Docket No:

E&L No. 53 of 2017

History Magistrate:

G. Sogomo (P.M.)

History Advocates:

Both Parties Represented

History County:

Meru

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

ELCA NO. E048 OF 2021

ZACHARIA KIBURI M’THARANJU ……………………… APPELLANT

VERSUS

JACOB M’MANYARA ………………..…………………….. RESPONDENT

(Being an appeal from the Judgment of Hon. G. Sogomo (P.M.) delivered on 18

th

March, 2020, in Tigania P.M. E&L No. 53 of 2017)

RULING

1. The applicant has brought an application dated

28.2.2021

seeking stay of execution of the ruling delivered on

18.3.2021

in

Tigania P.M. E&L 53 of 2017

pending hearing and determination of the appeal lodged on

24.3.2021.

2. The application is supported by grounds on the face of it and a replying affidavit sworn on

25.3.2021.

The appellant argues the lower court overlooked Meru

HC Succession cause No. 82 of 2002 decision

and went ahead to give orders whose effect was to amend or nullify a confirmed grant.

3. It is the appellant’s contention that if the decree or order is implemented, the respondent shall gain more land than on the ground hence prays for stay of execution.

4. The appellant filed written submissions dated

15.10.2021

and stresses the doctrine of

stare decises

.

5. The application is opposed by a replying affidavit sworn on

20

th

April, 2021

. It was the contention the respondent is that the judgment was given on

21.11.2019.

Thereafter the appellant brought an application for review which was dismissed on

18.3.2021

. He maintaines he has been in occupation of the suit land since 2002.

6. Further the respondent relies on written submissions dated

15.10.2021

reiterating that there were no substantive orders capable of execution or implementation granted by the court hence the application lacks merit.

7. For an application for stay to succeed, an applicant has to satisfy three conditions, namely substantive loss, no unreasonable delay in bringing the application and lastly offer for security for the due performance of the decree.

8. In

Victory Construction –vs- BM (a minor suing through next friend one PMM (2019) eKLR

the court held that stay may only be granted for sufficient cause and that the overriding objective under

Section 1A, 1B

of the

Civil Procedure Act

and

Article 159 (2) (c) of the Constitution

must also be considered in terms of just determination of proceedings, efficient disposal of suits, prudent use of judicial and administrative resources and timely disposal of suits at a cost effective manner.

9. In

Century Oil Trading Co. Ltd –vs- Kenya Shell Ltd (2008) eKLR

the court held substantial loss must mean something in addition to ordinary loss of a case; and that there must be balance between the interests of the applicant and the successful party. The court further held a party must not merely assert substantial loss, but must also demonstrate it with adequate and proper evidence.

10. The court has gone through the lower court file, the judgment adopting the alternative dispute resolution award made on

21.11.2019

and the review order of

18.3.2021

. It is apparent the appeal herein arises out of an order made under

Order 45 of the Civil Procedure Rules.

Under

Section 75 of the Civil Procedure Act

such an order is only appealable with leave of the court making it.

11. In this file, there is no indication the appellant sought for and obtained leave to appeal to this court. The appellant had initially failed to extract and attach the order or decree to the application for review. If the same had not been extracted then and has not been attached hereto, this court is not convinced, there is imminent danger of execution and or implementation of the lower court decree. The respondent has submitted that he is in occupation of one acre of the suit land since 2002 with full knowledge of the appellant.

12. Turning to the judgment delivered on

21.11.2019

there is no pending appeal against the said judgment. Guided by the reasoning in

Jaber Mohsen & Another (2014) eKLR,

I find the application has been made late in the day so as to deny the respondent a chance to enjoy fruits of his judgment.

13. Coming to the third aspect of security a successful party is entitled to enjoy fruits of his judgment and if not an applicant for stay of execution must show willingness to give an assurance that there will be due performance of the decree eventually either way the appeal goes; as a mark of good faith. See

Focin Motorcycle Co. Ltd –vs- Ann Wambui Wangui & Another (2018) eKLR.

14. In the instant case no offer has been made to furnish security.

15. The upshot is that the applicant has failed to meet the criteria to grant the orders of stay. The application dated

28.3.2021

is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 3

RD

DAY OF NOVEMBER, 2021

In presence of:

Mutisya for respondent

Ndubi for appellant

Court Clerk: Kananu

HON. C.K. NZILI

ELC JUDGE