Mugambi v Gitimbu

the property known as Plot No. 856 Mwangaza B pending hearing and determination of the Appeal. 2. 6. Any other relief That the Honourable Court dims t to grant. 7. The costs of this Application be provided for. The application is buttressed by the adavit of Florence Wanja Mugambi and has the following grounds: i. That judgment has been entered in favour of the Respondent and the Applicant stands to be evicted from her suit property. ii. That the applicant has appealed against the decision of the Judgment and Decree of the Honourable Chief Magistrate L Mutai delivered on 28th February, 2023. iii. That the Applicant’s Appeal as led raises substantive and meritorious grounds of appeal and the applicant is reasonably apprehensive That if the Respondent evicts and/or deals in any way whatsoever with the subject suit land the said appeal will be rendered nugatory. iv. That now the Respondent has initiated the process of eviction against the applicant. v. That the applicant will suer irreparable harm if the orders for stay of execution and orders of injunction are not granted. vi. That this application has been led in time. vii. That the applicant is ready and willing to abide by such terms as this court deems just and expedient in granting of the order sought herein. viii. That the Respondent will not suer any prejudice in the event the orders sought for in this application are granted and it is only fair and just that the orders sought herein are granted. ix. That it is the wider interest of justice That the orders sought be granted. 3. The parties have made extensive submissions in their eorts to buttress their diametrically incongruent assertions. 4. I have found That juxtaposing the contents of the Memorandum of Appeal and the orders issued by the trial court, will allow me to make an expeditions decision in this application. In her judgment delivered on 28th February, 2023, the Hon. L Mutai , Chief Magistrate entered Judgment as follows: 5. a. That an order of permanent injunction is hereby issued against the Defendant from trespassing and/or encroaching the Plainti’s Plot No. MB 276 Isiolo Town. b. An order of eviction is hereby issued against the defendant from Plot No. MB 276 Isiolo Town. (sic) c. The plainti shall have Kshs. 200,000/= as damages plus mesne prots as a result of trespass by the defendant.(sic) d. The plainti shall the costs and interests at court’s rates. Paragraph 2 in the Memorandum of Appeal reads as follows: “2 That the learned Magistrate5r4 erred in law and fact by failing to consider That the appellant was in actual occupation of her Plot No. 856 Mwangaza B having https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21948/eng@2023-12-04 2

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carried out developments thereon from the year 2000 way before the balloting exercise was carried out in the year 2005” 6. It is veritably pellucid That the Memorandum of Appeal and the orders issued by the trial court relate to two dierent Plot numbers. In applications for orders against orders issued by the lower courts, the centrality, the universality and the cardinality of the right practice is to have a clear nexus to the orders issued by the trial court. Whereas the trial Magistrate’s order unequivocally refers to Plot No. MB 276 Isiolo Town, the Memorandum of Appeal and this application at paragraph 4 refer to Plot No. 856 Mwangaza B. Then how can a court of law stay execution of a Judgment which does not contain the property introduced in the Memorandum of Appeal and in the application? This court is unable to do That. 7. I have considered the authorities the pleadings and the submissions proered by the parties to buttress their diametrically and veritably incongruent assertions. I nd That this application lacks merit. 8. In the circumstances, I issue the following orders: a. This application is dismissed. b. Costs shall follow the event and are awarded to the respondent. DELIVERED IN OPEN COURT AT ISIOLO THIS 4TH DAY OF DECEMBER, 2023 Court assistant: Balozi/Rahma Miss Mwiti holding brief Mwiti for the Appellant. Gikaara Wangechi holding brief for Otieno for the Respondent. HON JUSTICE P.M NJOROGE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21948/eng@2023-12-04 3

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