REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Misc. 274 of 2005 REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT versus LAND DISPUTE TRIBUNAL,MUMONI DIVISION MWINGI RESIDENT MAGISTRATE’S COURT ::::::::::RESPONDENTS AND MWANGANGI MASAKU:::::::::::::::::::::::::::::: INTERESTED PARTY AND EX-PARTE ::::::::::::::::::::::::::::::::::::::::::::::::::::MAITHYA NZUE RULING 1. The Applicant in this matter seeks orders under Order XLI Rule 4, Order XXI Rule 22(1) and Order L of the Civil Procedure Rules that the execution in this suit be stayed pending the determination of Civil Appeal No. 3 of 2007 before the Court of Appeal. It is also prayed that costs be in the cause. 2. I have read the Affidavit in support sworn on 6.2.2007 by Mwangagi Masaku and in it he depones that he was the original Interested Party in the Judicial review proceedings and when the ex-parte Applicant obtained the orders he had sought, he (the Interested Party) decided to appeal to the Court of Appeal and the appeal is yet to be determined. The ex-parte Applicant however moved to tax his costs and proceeded to execute the recovery thereof hence the present Application. 3. In his Replying Affidavit sworn on 15.2.2007, the ex-parte Applicant depones that the Appeal before the Court of Appeal is frivolous and has no chance of success. That the Applicant has failed to furnish any security and that in any event, the Interested Party can refund the costs should the Appeal succeed. 4. I have heard the submissions by both Mr.Kisebu for the Applicant and Mr.Ngala for the Respondent. I have also perused the decision of Nambuye,J in Transbel Ltd vs Anne Mwelu Mutungi & Another [2007] KLR where the learned judge set out the conditions for grant of an order of stay of execution. Those conditions are that: i. the Application should be lodged without undue delay. ii. the Applicant will suffer substantial loss unless the order is granted.
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iii. the Applicant is willing to deposit such security as the court may order. 5. In this case, I note that Onyancha,J. delivered his Ruling on 28.9.2006 and awarded costs to the exparte Applicant. The present Application was filed on 7.2.2007 only because of Notice to Show Cause had been issued on 24.1.2007. I have heard no complaint as to delay and so I take it that the issue is moot. 6. As to substantial loss the Applicant states in his Affidavit sworn on 1.3.2007 that the ex-parte Applicant is a peasant farmer and has no capacity to refund the costs should the Appeal succeed. I have weighed that issue and to my mind, there is real danger that the ex-parte Applicant may not have the means to refund the costs awarded to him. The Applicant has shown that he is willing to deposit such security as shall be ordered and in fairness to parties, that is the right way to deal with this matter. 7. In the event, I will grant the Application dated 6.2.2007 on condition that the entire decretal sum in costs is deposited in this court within 45 days failure to which execution may issue. 8. Costs shall abide the Appeal. 9. Orders accordingly. Dated and delivered at Machakos this 29th day of October 2008. Isaac Lenaola Judge In the presence of: Mr.Makau h/b for Mr Kisebu Mr. Musyoka for Applicant h/b for Mr. Ngala for Respondent Isaac Lenaola Judge
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