Gobe v Bora [2023] KEELC 22264 (KLR)

Gobe v Bora (Environment and Land Appeal 005 of 2023) [2023] KEELC 22264 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22264 (KLR)

Republic of Kenya

In the Environment and Land Court at Isiolo

Environment and Land Appeal 005 of 2023

PM Njoroge, J

December 11, 2023

Between

Ali Gobe

Appellant

and

Mohamed Golicha Bora

Respondent

Ruling

1. This application is dated 16/3/2023 and seeks orders:-1. That this application be certified urgent and fit to be heard forthwith and ex-parte in the first instance.2. That leave be granted to the firm of Shehi Kipkorir & Yussuf Advocates LLP to appear for the applicant.3. That an order do issue of stay of execution of the judgment, orders and decree of the Honourable Court in Environment and Land Court Case No E014 of 2021 (Mohamed Golicha Bora v Ali Gobe) made by the honourable MS Kimani Principal Magistrate, delivered on March 3, 2023 at Moyale pending the hearing and determination of this application.4. That an order do issue of stay of execution of the judgment, orders and decree of the Honourable Court in Environment and Land Court Case No E014 of 2021 (Mohamed Golicha Bora v Ali Gobe) made by the honourable MS Kimani Principal Magistrate, delivered on March 3, 2023 at Moyale pending the hearing and determination of the Appeal.5. That the costs of this application be in the cause.6. That any other order that this honourable court deems fit to grant.

2. The application is supported by the affidavit of Ali Gobe, the applicant and has the following grounds:-a.The applicant being aggrieved by the Judgment, orders and decree of this Honourable court made by the honourable (Mr) M.S Kimani Principal Magistrate on March 3, 2023 intends to appeal against the said judgment, orders and decree.b.After being dissatisfied with the said judgment, the applicants herein instructed their advocates on record to lodge the appeal herein.c.The defendant/applicant stands to suffer irreparable (sic) if the orders sought are not granted.d.The intended appeal raises strong arguable issues in which the appeal itself stands good chances of success.e.On balance of convenience there are good and sufficient grounds for the grant of stay of execution as sought by the Applicant.f.The application herein has been brought without undue delay.g.The applicant is willing to abide with any conditions that the Honourable court may deem fit and just to impose including an order for security.h.Any delay to hear this application will defeat the object with which it is brought under and render it nugatory.i.It is in the interests of administration of justice that the prayers sought be allowed as prayed.

3. The application was canvassed by way of written submissions.

4. The applicant submits that his memorandum of appeal evinces enough grounds for his application to succeed.He proffers the case of RWW v EKW for his assertion that “The purpose of an application for stay of execution pending an appeal it to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory”

5. The applicant tells the court that he is ready to comply with any court orders appertaining to execution.

6. The respondent has opposed the application and argues that the applicant has not demonstrated that he would suffer irreparable damages, if the orders sought in this application are not granted. The respondent has proffered the cases of Elena D Korir v Kenyatta University [2014] eKLR and Machira t/a Machira & Co Advocates v East African Standard [2002] eKLR for his assertion that irreparable loss must be demonstrated.

7. The respondent says that the applicant has not offered deposit for security and submits that he should be compelled to pay security for costs. He proffers the case of Aron C Sharma v Ashan Raikundalia [2014] eKLR for his assertion that “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant”.

8. I have considered the pleadings, the authorities and the submissions proffered by the parties to buttress their assertions. I do find that the orders sought by the applicant are merited.

9. In the circumstances, I issue the following orders:-a.Prayer 2 in the application is granted.b.Prayer 3 in the application, for orders of stay of execution is hereby conditionally granted Provided that the applicant will deposit with court a sum of Kes 600,000/= to guarantee the due performance of such decree or order as may ultimately be binding on the applicant, within 21 days of today provided Further that if the applicant does not deposit with court the said sum of Kes 600,000/= within the stipulated period of 21 days, the order for Stay of Execution granted herein shall automatically lapse.

DELIVERED IN OPEN COURT AT ISIOLO THIS 11THDAY OF DECEMBER, 2023 IN THE PRESENCE OF:Court assistant: Balozi/RahmaMs Nyasani holding brief for Owande for the Respondent.Appellant or Advocate not in court.HON. JUSTICE P.M NJOROGEJUDGE