Tuyoto & 124 others v Chairman Limanet Group Ranch Committee & 3 others

Judgment and that they already lodged a Notice of Appeal in court and the respondent are likely to execute the said Judgment and if the same happens they will suer substantial loss and damage. 3. The applicants further contended that the Appeal has a chance of success and the Appeal may be rendered nugatory. The grounds relied on by the applicant was further supported by the Adavit of Merin Ole Tuyoto led in court on 9/4/2021, where a copy of the Notice of Appeal was annexed to the said adavit. 4. The application was opposed by the respondent by way of a replying adavit sworn by Sachwa Ole Naeni who is the secretary of Limanet Group Ranch Committee in which he contends that the application is incompetent as the applicants were granted a stay of execution and their record only lies in the Court of Appeal since upon rendering Judgment. The trial court became Functus Ocio and it cannot revisit issued that were before it and had determined and further that a party cannot show that he has a prima facie case before a court has rendered Judgment in a matter. 5. The defendant further contends that the right recourse for the applicant would have been to seek a stay of execution before the Court of Appeal where the Appeal is currently domiciled as there is no leeway for the trial court to grant the orders sought. 6. I have considered the application before me and the replying adavit in opposition to the said application and the submissions led by the parties. The applicants been apprehensive that the respondent are likely to execute the decree led. 7. The defendant on the other hand contended that the court is functus Ocio and the only recourse for the applicant is to seek the stay in the Court of Appeal. 8. The power to grant a stay of execution is a discretionary power excerated by Order 42 Rule 6 (2) of the Civil Procedure Rules vests in the court where it is convinced that substantial loss may occur and the Appeal rendered nugatory. 9. Having considered the circumstances of the instant Application, this is an application which I am of the considered view that in the event that the orders sought is not granted the Appeal may be rendered nugatory. There exist special circumstances that warrant the grant of the orders that this being a suit relating to land which is emotive, the subject of the Appeal could be altered in such a manner as to make the Appeal nugatory. 10. In view of the above, I will thus exercise my discretion and allow the Notice of motion dated 28/4/2021 and accordingly grant a stay of execution pending the hearing and determination of the Appeal on the condition that the applicant do le the record of Appeal within 60 days of this Ruling and set the said Appeal for hearing and in default the stay of execution herein granted shall automatically lapse. DATED SIGNED DELIVERED, VIRTUALLY AT MIGORI THIS 16TH DAY MARCH OF 2022. MOHAMMED .N. KULLOW JUDGE In presence of ;Tom Maurice – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16758/eng@2023-03-16 2

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