John Muhoro Njore v Nanasi Housing Co-operative Society Limited & 2 others [2020] eKLR Case Summary

Court
Co-operative Tribunal at Nairobi
Category
Civil
Judge(s)
Hon. B. Kimemia (Chairman), Hon. F. Terer (Deputy Chairman), P. Swanya (Member)
Judgment Date
February 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of John Muhoro Njore v Nanasi Housing Co-operative Society Limited & 2 others [2020] eKLR, detailing legal arguments, outcomes, and implications in property law.

Case Brief: John Muhoro Njore v Nanasi Housing Co-operative Society Limited & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: John Muhoro Njore v. Nanasi Housing Co-operative Society Limited, Margaret Wairimu Mbirua, Judy Mwihaki Kinyua
- Case Number: Tribunal Case No. 369 of 2010
- Court: Co-operative Tribunal at Nairobi
- Date Delivered: February 26, 2020
- Category of Law: Civil
- Judge(s): Hon. B. Kimemia (Chairman), Hon. F. Terer (Deputy Chairman), P. Swanya (Member)
- Country: Kenya

2. Questions Presented:
The court had to resolve whether the 1st and 2nd Respondents had established a sufficient basis for an order of stay of execution of the judgment delivered on August 10, 2018, and who should bear the costs of the application for the stay.

3. Facts of the Case:
The Claimant, John Muhoro Njore, sued the 1st and 2nd Respondents, Nanasi Housing Co-operative Society Limited and Margaret Wairimu Mbirua, for unlawfully conferring title of a parcel of land to the 3rd Respondent, Judy Mwihaki Kinyua. The Tribunal ruled in favor of the Claimant, leading the 1st and 2nd Respondents to file an application for a stay of execution of the judgment, arguing that the execution would result in irreparable harm to them and that they intended to appeal the judgment out of time. The Claimant opposed the application, citing undue delay and lack of merit.

4. Procedural History:
The case progressed as follows:
- A judgment was entered on August 10, 2018, in favor of the Claimant.
- The 1st and 2nd Respondents filed an application for a stay of execution on November 13, 2018, seeking to appeal the judgment out of time.
- The Claimant opposed this application, leading to a hearing where both parties submitted their arguments.
- A separate application by the 3rd Respondent was filed on March 8, 2019, seeking to set aside the default judgment, which the Claimant opposed.
- The Tribunal consolidated the applications for determination.

5. Analysis:
- Rules: The relevant statute considered was Order 42 Rule 6 of the Civil Procedure Rules, which outlines the conditions under which a stay of execution can be granted. The court must be satisfied that substantial loss may result if the order is not made and that the application has been made without unreasonable delay.

- Case Law: The court referenced *Chris Munga N. Bichage v. Richard Nyagaka Tongi & 2 Others* and *M/S Porteitz Maternity v. James Karangu Kabia*, which established that an applicant must demonstrate both an arguable appeal and that the execution would render the appeal nugatory. The court emphasized the balance between the right to appeal and the plaintiff's right to enjoy the fruits of their judgment.

- Application: The court found that the 1st and 2nd Respondents had demonstrated potential substantial loss if the stay was not granted, as the execution would lead to the cancellation of the title to the land in question. The court also determined that the delay in filing the application was not unreasonable, given the circumstances surrounding the issuance of certified copies of the judgment. In contrast, the 3rd Respondent's application was dismissed due to lack of due diligence in responding to the judgment.

6. Conclusion:
The Tribunal granted the 1st and 2nd Respondents' application for a stay of execution of the judgment dated August 10, 2018, until the hearing and determination of their application for leave to appeal out of time. The 3rd Respondent's application was dismissed, reinforcing the importance of timely responses in legal proceedings.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The Tribunal's ruling allowed the 1st and 2nd Respondents to stay the execution of a judgment that favored the Claimant, emphasizing the necessity of balancing the rights of parties in civil litigation, particularly regarding land ownership disputes. The dismissal of the 3rd Respondent's application underscored the importance of timely engagement with court processes. The case highlights the complexities involved in appeals and the necessity for parties to act promptly to protect their interests.

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