Bonventure Oundo Mbanda & another v John Owundo Mbanda & 4 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
N.A. Matheka
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Bonventure Oundo Mbanda & another v John Owundo Mbanda & 4 others [2020] eKLR


1. Case Information:
- Name of the Case: Bonventure Oundo Mbanda & Kennedy Oundo v. John Owundo Mbanda, Peter Mwanza alias Peter Oundo Kanuti, Windrick Oparanya Wamukoya, Simon Okwako
- Case Number: ELC Case No. 171 of 2017
- Court: Environment and Land Court at Kakamega
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): N.A. Matheka
- Country: Kenya

2. Questions Presented:
The court must resolve the following legal issues:
- Whether to grant a stay of execution of the decree issued on 17th December 2019 pending the intended appeal by the defendant/applicant.
- Whether the judgment delivered on 17th December 2019 requires interpretation, particularly Order No. 3 of the final orders.

3. Facts of the Case:
The plaintiffs, Bonventure Oundo Mbanda and Kennedy Oundo, obtained a judgment in their favor on 17th December 2019. Following this judgment, the first plaintiff began cutting down trees belonging to the third defendant, Windrick Oparanya Wamukoya, on land parcel No. S. Wanga/Lureko/2513. The third defendant claimed that the judgment did not grant the plaintiff permission to evict or destroy any crops or developments on the suit land. Aggrieved by the judgment, the third defendant sought a stay of execution and indicated intentions to appeal, arguing that he would suffer irreparable loss if the stay was not granted.

4. Procedural History:
The application for a stay of execution was filed on 3rd July 2020 and was based on the Civil Procedure Act and the Civil Procedure Rules. The application included requests for urgent consideration, a temporary order of stay pending hearing, and an assessment of damages to the defendant's tree plantation. The court considered the application, the grounds provided, and the affidavit of the third defendant before making its ruling.

5. Analysis:
- Rules: The court relied on Order 42, Rule 6 (1) of the Civil Procedure Rules, which outlines the conditions under which a stay of execution may be granted, including the requirement of demonstrating substantial loss and that the application was made without unreasonable delay.
- Case Law: The court referenced several cases, including *Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd* and *Chris Munga N. Bichange vs. Richard Nyagaka Tongi & 2 Others*, which established the need for an arguable appeal and the potential rendering of the appeal nugatory if a stay is not granted. The court also cited *Mohamed Salim T/A Choice Butchery vs. Nasserpuria Memon Jamat*, emphasizing the balance between the right to appeal and the right of the plaintiff to enjoy the fruits of the judgment.
- Application: The court found that the applicant did not demonstrate that the appeal was arguable or that failing to grant the stay would render the appeal nugatory. The court concluded that the application for stay was not meritorious and dismissed it, stating that the interpretation of the judgment was clear and could only be evaluated on appeal.

6. Conclusion:
The court dismissed the application for a stay of execution, ruling that the defendant/applicant failed to meet the necessary criteria. The court's decision reaffirmed the importance of adhering to procedural rules in civil litigation and clarified the interpretation of prior judgments, emphasizing that such matters should be resolved on appeal rather than through interim applications.

7. Dissent:
There was no dissenting opinion noted in this case.

8. Summary:
The Environment and Land Court at Kakamega ruled against Windrick Oparanya Wamukoya's application for a stay of execution regarding a decree favoring the plaintiffs. The court found that the applicant did not satisfy the conditions for a stay and that the judgment was clear. This case highlights the court's commitment to upholding procedural integrity and the rights of parties in civil litigation, while also emphasizing the necessity for applicants to demonstrate substantial grounds when seeking stays pending appeal.

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