1.Before me is an Application for stay of Execution dated 02/06/2023 brought by the 1st defendant/applicant. This follows the Judgment of this court dated 22/03/2023 that reads as follows: -a.A declaration be and is hereby issued that the Plaintiff is the owner of 9 Hectares out of land parcel North Mugirango/Magwagwa II/403 to be registered in the name of the 1st defendant the same being ancestral land.b.An order is hereby made that the 1st defendant do forthwith transfer to the plaintiff 9 Hectares out of land parcel No. North Mugirango/ Magwagwa II/403 in lieu of which the Deputy Registrar of this honourable court do execute transfer documents in place of the 1st defendant.c.A permanent injunction do issue against thedefendants and/or their agents or servants, to desist from interrupting the Plaintiff’s quiet enjoyment of the land in the designated 9 Hectares out of land parcel No. North Mugirango/ MagwagwaII/403.d.Kshs. 1,250,000/= General Damages, Exemplary Damages and Aggravated Damages for unlawful eviction, destruction of property and for the attendant nervous shock, emotional distress, psychological, mental anguish and the unconstitutional, cruel, degrading and inhuman treatment meted on and occasioned to the Plaintiff and his family when carrying out the unconstitutional and illegal eviction.
2.The prayers sought in the Application dated 02/06/2023 are as follows: -a.That this Application be certified as urgent, be heard ex-parte and service of the same be dispensed with in the first instance;b.That this honorable court be pleased to order stay of execution of the Judgment, Decree and Order to transfer 9 Hectares out of land parcel North Mugirango/magwagwaii/403 to the Plaintiff/Respondent of this Honorable Court delivered on 22/03/2023 pending the hearing and determination of this Application inter parties;c.Thatthishonorable court be pleased to order stay of execution of the Judgment, Decree and Order to transfer 9 Hectares out of Land Parcel North Mugirango/MagwagwaII/403 to the plaintiff/respondent of this honorable court delivered on 22/03/2023 pending the hearing and determination of the intended appeal.d.Thatcosts of this Application be in the cause.
3.The same is supported by the Affidavit of one Jack Magara, the County Secretary of the 1st defendant/applicant who depones that the 1st defendant intends to Appeal against the said Judgment and has indeed sought for the proceedings and certified copy of the Judgment and Decree in the case and has already filed a Notice of Appeal in order to commence the intended appeal to the court of Appeal and fears that should the stay not be granted, then the Applicant stands the risk of having 9 Hectares out of land parcel No. North Mugirango/MagwagwaII/403 transferred to the Plaintiff/Respondent. The other defendants do support the applicant’s Application. On his part, the plaintiff has opposed the Application and both contesting parties have filed their written Submissions which I have considered.
4.Stay of Execution is a Judgment Debtor’s right. Nonetheless, it is important that the court takes into consideration the likely effect of granting the stay of execution in question or of the failure to do so. In other words, the court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before thecourt on equal footing and see where the scales of justice lie, considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the court do not render nugatory the ultimate end of justice. And as this court has held in the past and most recently in the case of Shadrack Nyaberi Mwakae v David M. Omoganda Ong’era, Nyamira ELC Case No. 92 of 2021:
5.Consequently, taking all relevant factors into account and in order not to render the intended appeal illusory while at the same time securing the interests of the successful Party, I make the following orders: -a.Upon transfer by the 1st defendant to the plaintiff of 9 Hectares out of land parcel No. North Mugirango/ Magwagwa II/403, the said Title Deed shall be deposited in this court and there shall be no further transaction against the said Title until the intended Appeal is disposed of.b.There shall then be a Stay of Execution of the Judgment of this court dated 22/3/2032 on condition that the Title Deed to the property known as LR NO. North Mugirango/ Magwagwa II/403 is deposited incourtwithin Fifteen (15) days from the date of transfer failure to which these orders will automatically lapse.c.The Decree Holder shall have uninterrupted exclusive use, possession and occupation of the 9 Acres aforesaid only subject to (a) above.d.The intended Appeal shall be filed within the next ninety (90) days hereof.e.The Costs of this Application shall await the outcome of the intended Appeal.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 27TH DAY OF JULY 2023.MUGO KAMAUJUDGEIn the Presence of: -Sibota - Court AssistantPlaintiff in personMr. Bonareri holding brief for Mr. Nyachiro for the 1st DefendantMr. Ondima for the 2nd & 3rd RespondentsMr. Ndiritu for the 5th Defendant