KISUMU, Kenya, September, 24th -The Land and Environment Court in Kisumu has ordered parties in a disputed land parcel in Muhoroni town to file their submissions within twenty-one days pending the delivery of judgment over the matter.
Lady Justice Esther Asati, sitting at the Lands Court in Kisumu, gave the orders virtually in an appeal involving Rahab Obange and Evans Abondo, who are the appellants and Susan Matoka, who is the respondent in an appeal.
The appeal arises from a judgment delivered earlier by a Tamu law court which found that Obange duly sold a parcel of land to the respondent in this appeal.
The appellants moved to court seeking an order pending the hearing and determination of the appeal, asking that there be a stay of execution of the lower court’s judgment of 2023.
The application was opposed through the contents of the replying affidavit sworn by counsel for the respondent on 17th February, 2024. The applicant’s case was that unless the orders sought are granted, the appeal shall be rendered nugatory.
They argued that if the execution proceeds, the applicants will suffer substantial loss and shall be prejudiced.
It is their case that the application had been brought without undue delay and that the applicant undertakes to abide by any orders the court may deem just and fit to issue.
They further argued that the second applicant, who has possessed the suit land since 2023 and has invested heavily, will suffer substantial loss if an order of stay of execution is not granted.
The case of the respondent is that the application is fatally defective, an afterthought and an abuse of the court processes and that the applicant does not have an arguable appeal.
It is their case that the 1st appellant sold the suit land to the respondent who has since concluded payments of the same. They argue that the substantial loss has not been demonstrated and that the applicants have not offered security as required.
Justice Asati ruled that she has considered the application, the replying affidavit and submissions. The judge noted that it is clear from the record that an appeal has already been filed.
She also ruled that it is also clear from the annexures to the application that the judgment of the trial court ordered specific performance and a permanent injunction against the applicants.
It was pleaded in the plaint that the 2nd Applicant had already entered the land and was putting up structures. It was submitted that the 2nd Applicant will suffer substantial loss if execution proceeds.’ said Justice Asati.
Justice Asati observed that the court is satisfied that it is important to preserve the status quo of the suit land pending appeal.
She ruled that the application is therefore hereby allowed on the condition that the applicants deposit a sum of Shs 200,000 being security for the due performance of such decree or order as may ultimately be binding on them, in an interest-earning account in the joint names of Counsel for the Applicants and Counsel for the Respondent within 45 days hereof, failing which the stay order hereby granted shall lapse.
