Nancy Witambuka Ambula & another v County Lands Registrar, Kakamega [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: Nancy Witambuka Ambula & another v County Lands Registrar, Kakamega [2020] eKLR


1. Case Information:
- Name of the Case: Bonventure Oundo Mbanda & Kennedy Oundo vs. 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 central legal issues before the court included:
1. Whether to grant an ex parte temporary order of stay of execution of the decree issued on 17th December 2019 pending an inter partes hearing of the application.
2. Whether the court should interpret the judgment delivered on 17th December 2019, particularly order No. 3 of its final orders.

3. Facts of the Case:
The plaintiffs, Bonventure Oundo Mbanda and Kennedy Oundo, filed a suit against the defendants, including John Owundo Mbanda, Peter Mwanza, Windrick Oparanya Wamukoya, and Simon Okwako. The case arose from a judgment delivered on 17th December 2019, which favored the plaintiffs. Following this judgment, the plaintiffs began cutting down trees belonging to the third defendant, Windrick Oparanya Wamukoya, on land parcel No. S. Wanga/Lureko/2513. Wamukoya claimed that the court's orders did not authorize the plaintiffs to evict or destroy any crops or developments on the suit land and that he intended to appeal the judgment.

4. Procedural History:
On 3rd July 2020, Windrick Oparanya Wamukoya filed an application under sections 1A, 1B, and 3A of the Civil Procedure Act and various rules of the Civil Procedure Rules. The application sought a stay of execution of the decree pending appeal and an interpretation of the prior judgment. The court considered the application and submissions from both parties, focusing on the criteria for granting a stay of execution.

5. Analysis:
- Rules: The court referenced 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 necessity for the applicant to demonstrate potential substantial loss, timely application, and security for performance of the decree.

- Case Law: The court cited several precedents, including *Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd* and *Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others*, which established that an applicant must show that their appeal is arguable and that refusal to grant a stay would render the appeal nugatory. The court also referenced *Carter & Sons Ltd vs. Deposit Protection Fund Board & 2 Others*, emphasizing that strong grounds for appeal alone do not justify a stay without sufficient cause.

- Application: The court found that Wamukoya failed to demonstrate that his appeal was not frivolous or that substantial loss would result from the refusal of the stay. The court concluded that the application did not meet the necessary criteria, particularly regarding the arguability of the appeal and potential irreparable harm.

6. Conclusion:
The court dismissed Wamukoya's application for a stay of execution, asserting that he had not fulfilled the required grounds for such an order. The court also clarified that the interpretation of the judgment of 17th December 2019 was unnecessary as the order was already clear.

7. Dissent:
There were no dissenting opinions noted in this ruling, as only one judge presided over the case.

8. Summary:
The court ruled against Windrick Oparanya Wamukoya's application for a stay of execution of the decree issued on 17th December 2019. The decision underscored the importance of satisfying specific legal criteria for stay applications, including demonstrating that an appeal is arguable and that failure to grant the stay would cause irreparable harm. The ruling serves as a significant reference for future cases regarding the standards required for stay applications in civil proceedings in Kenya.

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