Eliphas Mbae Arithi v Angela Gatumi Mucheke [2016] KEHC 4519 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 35 OF 2015

ELIPHAS MBAE ARITHI.....................................................APPELLANT

VERSUS

ANGELA GATUMI MUCHEKE............................................RESPONDENT

R U L I NG

This application  is dated 27th July, 2015 and seeks orders:-

1. THAT this Honourable Court be pleased to certify  this application as urgent and hear the same ex-parte in the first instance.

2. THAT this Honourable Court be pleased to order stay of execution of the Judgment/decree of the Principal Magistrate Nkubu in Nkubu PMCC NO. 74 of 2013  pending the hearing of this application inter parties.

3. THAT this Honourable Court be pleased to order stay  of execution of the Judgment/Decree of the Principal Magistrate Nkubu PMCC NO. 74 OF 2013   pending the hearing and determination of this Appeal.

4. That the cost of this application be provided for.

The application is supported by the Affidavit of the applicant, ELIPHAS MBAE ARITHI and has the following grounds:-

a. THAT  the applicant was not satisfied with the Judgment of the  Court.

b. THAT the applicant has been on the land for now close to 12 yearsand has extensively developed the same which is only 1 acre and  should not be evicted.

(c )  THAT the Court refused to consider the Appellant's case and  binding authorities from the High Court and Court of Appeal.

d. THAT the applicant has a good Appeal and should be given chance to be heard by this Court before he is thrown out of what he has known as his  home for over 10 years.

On  29th, July, 2015, I ordered the applicant to deposit a sum of Kshs.  100,000/= in Court within 7 days of the date failing which the order of stay would lapse. The applicant obeyed the order and deposited with Court a sum of Kshs. 100,000/=.

I have considered the pleadings and the Submissions proffered by the parties in support of their respective assertions . I find that the application has merit. It is ordered as follows:-

1. This Court stays the Execution of the Judgment/Decree of the Principal  Magistrate, Nkubu, in PMCC No. 74 of 2013 pending the hearing and determination of this Appeal.

2. The sum of Kshs. 100,000/= already deposited with the Court by the applicant,  be retained as deposit for security  until this appeal is heard and determined.

3. To expedite the hearing of the appeal , I admit it to appeal and the appellant should file the record of appeal and serve it upon the respondent within 60 days of today.

4. After the record of Appeal is filed and exchanged, the parties will obtain a mutually convenient date for directions from the Registry.

It is so ordered.

DELIVERED IN OPEN COURT AT  MERU THIS 19TH DAY OF MAY, 2016 IN THE PRESENCE OF:-

CC: Lilian/Daniel

Muthamia h/b Rimita for Applicant

P.M NJOROGE

JUDGE