Mwingirwa v Nkuraru & 2 others

attached copies of the title deed decree in ELC No 70 of 2018, appeal in ELC No 69 of 2019, decree thereof, and copy of the bond or charge sheet as annexures marked MJ 1 – 5, respectively. 4. The 1st respondent opposes the application through a replying adavit sworn by M’Mailutha Nkuraru on September 13, 2023. The grounds are that the application was replete with falsehoods, a perpetuation of fraud of an unlawfully acquired title it was to steal a match; the applicant has never been in occupation of the land since it was gathered by his father in 1966, despite obtaining an illegal judgment in 2018, no eviction has occurred and that the applicant has been using the court to steal the land or block him from utilizing it. Further, the 1st respondent avers that the applicant’s family forcefully attempted to enter the land, precipitating a ght. Lastly, the 1st respondent avers that the A/R records would conrm that his name was irregularly and or illegally cancelled and that of the applicant inserted in the records. The 1st respondent attached a copy of the order received on August 24, 2023 and a bundle of adjudication records as annexures marked MN1 – 2, respectively. 5. The applicant relies on written submissions dated October 23, 2023 reiterating that he has met the requirements for a grant of stay orders. On the other hand, the 1st respondent in written submissions dated October 24, 2023 urges the court to nd the application lacking merits. He states, guided by Joel Arap Koech v Alice Wambui Magandu & 3 others (2018) eKLR, that a greater injustice would be occasioned if the orders sought were granted. Further, it is submitted that since both parties are claiming the land, the scales of justice if balanced, would require the status existing to be maintained to the eect that he remains on his land since he has been in occupation of the suitland, unlike the applicant. 6. A party seeking a stay of execution and an inhibition order pending hearing and determination of an appeal has to make the application on time, demonstrate substantial loss, oer security for the due performance of the decree should the appeal not succeed, and lastly, demonstrate that it was in the interest of justice that the orders sought to be granted. 7. In James Wangalwa v Agnes Naliaka Cheseto (2012) eKLR, the court observed that execution was a legal process and that it was not enough to allege substantial loss without demonstrating it with tangible evidence. Further in Arun C Sharma v Ashana Raikundalia & 5 others (2015) eKLR, the court observed that security for the due performance of a decree was not a punishment to the judgment debtor but was a necessity since a decree was like a debt owed to the decree-holder. On delay, the courts have held that it all depends on the circumstances of each case since even a one-day delay could be inordinate. 8. In this application, the applicant has demonstrated that he has a title deed and a previous decree of a competent court in his favor, which was issued before the instant decree was appealed against. On the other hand, the 1st respondent has termed the title and the decree fraudulently and illegally obtained. The applicant and the 1st respondent do not agree on who is occupying the land. The grounds to the notice of motion refer to the 1st respondent as the one in occupation, while the replying adavit mentions the applicant as the one on the land. No evidence has been attached to show the nature of the applicants’ developments on the suit land, its value, particulars, and status for this court to establish what irreparable loss or damage was likely to be suered should the execution occur. 9. There was no explanation given why the earlier decree was not executed on time or at all and, more importantly, why the disclosure was not made before the trial court of a previous suit and or decree to avoid the alleged conicting decree from the same court. Additionally, the applicant has not explained why it took over two weeks to apply for a stay of execution. Further, the applicant has not oered any security for the due realization of the decree should the appeal not succeed. Lastly, given the two disclosed existing decrees, granting any interim orders under the circumstances would not be in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21265/eng@2023-11-01 2

page 2 of 3

interest of justice. The upshot is that I nd the application dated July 17, 2023 lacking merits. The same is dismissed with costs. Lower court le be availed for mention before the deputy registrar on November 30, 2023. DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 1ST DAY OF NOVEMBER 2023. In presence of C.A Kananu/Mukami Miss Asuma for Mutembei for the 1st respondent 1st respondent Miss Maina for Mbaikyatta for the 2nd and 3rd respondent HON. CK NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21265/eng@2023-11-01 3

page 3 of 3