Loise Muthoni Njagi v Margaret Ciambaka Mugambi [2019] KEELC 3030 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA ELC  CASE NO. 09  OF 2018(OS)

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT, CAP 22, SECTION 7, 37 & 38

AND

IN THE MATTER OF LAND REGISTRATION ACT (NO. 3 OF 2012) AND LAND ACT (NO. 6 OF 2012)

AND

IN THE MATTER OF AN APPLICATION BY LOISE MUTHONI NJAGI

UNDERTHE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA THAT SHE BE

REGISTEREDAS PROPRIETOR OF PART MEASURING APPROXIMATELY 4. 75 ACRES

OR THEREABOUT OF LAND PARCEL NO. MAGUMONI/THUITA/1318

AND

FOR A DECLARATION TO THE LAND REGISTRAR UNDER SECTION 24 AND 28 OF

LAND OF LAND REGISTRATION ACT (NO. 3 OF 2012) TO REGISTER THEAPPLICANT

AS THE PROPRIETOR OF PAT MEASURING APPROXIMATELY 4. 75ACRES

OR THEREABOUT OF LR NO. MAGUMONI/THUITA/1318

LOISE MUTHONI NJAGI..............................................................PLAINTIFF

VERSUS

MARGARET CIAMBAKA MUGAMBI.....................................DEFENDANT

RULING

1. This application is dated 30th May, 2019.

2. On 12th June, 2019, when the matter came up for interpartes hearing Mr. Atheru for the plaintiff and Miss Kiai for the defendant proffered a consent which they asked the court to adopt as its order. The consent is in the following form:

“CONSENT

1. The application dated 30th May,2019 be and is hereby allowed in the following terms:-

a. There be a stay of execution of judgment delivered by this honourable court on 22nd May, 2019 and any other consequential orders pending hearing and determination of the intended appeal.

b. The defendant/applicant to file the said appeal within 30 days after being supplied with the certified copies of typed proceedings and judgment.

c. In default of (b) above execution to issue.

d. Costs of the said application shall be costs in the appeal.

Dated the 12th day of June, 2019

Signed   Atheru Adv for plaintiff/respondent

Signed   Betty W. Kiai for Joe Kathungu & Co. Adv.

3. I decline to adopt the consent in its present format as it goes against the provisions of order 42 rule 6, 2(b) of the Civil Procedure Rules. In lieu thereof, I substitute it to read as follows:

a. The appellant is required to deposit with court as security the sum of Kshs. One Million (Kshs.1,000,000/=) within twenty one days of today FAILING which the stay of execution granted herein will automatically lapse.

b. Subject to the provision of security as ordered above, stay of Execution of judgment delivered by this court on 22nd May, 2019 and any other consequential orders is GRANTED pending hearing and determination of the intended appeal.

c. The defendant/applicant is ordered to file the intended appeal within 30 days of today FAILING which the stay granted herein shall stand vacated and, therefore, inconsequential.

d. For avoidance of doubt, it is clarified that default in satisfying any of the orders granted herein shall render the stay granted herein automatically vacated.

e. Costs of this application shall be in the cause.

f. Parties to come to court for directions on 23rd July, 2019

Delivered in open Court at Chuka this 12th day of June, 2019 in the presence of:

CA: Ndegwa

Atheru for the Plaintiff/Respondent

Betty Kiai for the Defendant/Applicant

P. M. NJOROGE,

JUDGE.