Hoge v Gale [2024] KEELC 5983 (KLR)

Hoge v Gale (Environment and Land Appeal E015 of 2024) [2024] KEELC 5983 (KLR) (23 September 2024) (Ruling)

Neutral citation: [2024] KEELC 5983 (KLR)

Republic of Kenya

In the Environment and Land Court at Isiolo

Environment and Land Appeal E015 of 2024

PM Njoroge, J

September 23, 2024

Between

Daniel Daro Hoge

Appellant

and

Daro Hoge Gale

Defendant

Ruling

1. This application is dated 22/8/2024 and seeks orders;1. That this Honourable Court be pleased to certify this application as urgent and order that the same be heard exparte in the first instance.2. That there be a stay order against execution of judgment dated 23rd July, 2024 and subsequent decree in Marsabit SPM ELC No. E016 of 2021, Daro Hoge Gale Vs Daniel Daro Hoge pending the hearing and determination of this application interparties.3. That there be a stay order against execution of judgment dated 23rd July, 2024 and subsequent decree in Marsabit SPM ELC No. E016 of 2021, Daro Hoge Gale Vs Daniel Daro Hoge pending the hearing and determination of the Appeal.4. That the costs of this application be provided for.

2. The application is supported by the affidavit of Daniel Darohoge, the applicant and has the following grounds;1. That Honourable Christine Wekesa (SPM) on 23rd July delivered a judgment to in which she ordered for the eviction of the Applicant from suit property, a property on which the Applicant has constructed a house and leaves upon together with his wife and children for over 14 years.2. That the trial court has allowed for stay of execution pending Appeal for 30 days and the same expires on 23rd August, 2024. 3.That the Applicant obtained and/or was issued with a copy of the judgment on 21st August, 2024 hence the Applicant could not have filed the current application on time.4. That the Respondent is likely to evict the Applicant (who is his son) and his family and destroy their family home unless the application is heard and orders issued to preserve the subject matter of the suit pending the hearing and determination of the Appeal.5. That the applicant is the eldest son of the Respondent who has been living on the suit property for over 14 years and who has extensively developed the suit property and the Respondent despite having given out the said portion of the property to the Applicant is now seeking to evict after the said portion of the suit property was developed by the Applicant.6. That the applicant has an arguable appeal with high chance of success considering the equitable rights of the Applicant over the suit property.7. That the current appeal shall be declared nugatory and mere academic exercise unless this Honourable court intervenes and issues orders for stay to preserve the status quo.8. That it is in the best interest of justice that the orders sort be granted.

3. During the date slated for hearing of the application interparties, the applicant and his advocate were not in court even though the Applicant’s firm of advocates is the one that served today’s hearing date upon the respondent’s advocate.

4. A party who refuses to participate in a matter he has instigated does not deserve orders sought when there is clear evidence that he and his advocate were aware of the hearing date.

5. I agree with the Respondent’s Advocate that this application should be summarily dismissed for want of prosecution. Consequently, the following orders are hereby issued:i.This application is hereby dismissed.ii.Costs shall follow the event and are awarded to the respondent.

DELIVERED IN OPEN COURT AT ISIOLO THIS 23RD DAY OF SEPTEMBER, 2024 IN THE PRESENCE OF:Court Assistant: Balozi/RahmaKevin Nyenyire for the Respondent.Applicant and Advocate absent.HON. JUSTICE P.M NJOROGEJUDGE