Maganjo & Company Limited & 3 others v Maregwa & 3 others [2023] KEELC 20801 (KLR)

Maganjo & Company Limited & 3 others v Maregwa & 3 others (Environment and Land Appeal E041 of 2022) [2023] KEELC 20801 (KLR) (17 October 2023) (Ruling)

Neutral citation: [2023] KEELC 20801 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment and Land Appeal E041 of 2022

LC Komingoi, J

October 17, 2023

Between

Maganjo & Company Limited

1st Appellant

Peter Karanja Thou

2nd Appellant

Hannah Wanjiru Thou

3rd Appellant

Hamud Mohammed Osman

4th Appellant

and

Njogu Maregwa

1st Respondent

Nambiri Magu

2nd Respondent

Winfred Njogu Mwaniki

3rd Respondent

Patrick Mwaniki Mbuogo t/a Maganjo & Company

4th Respondent

Ruling

1. This is the Notice of Motion dated 30th August 2023 brought under;Order 45 Rule 1 of the Civil Procedure Rules, Section 3A and 80 of the Civil Procedure Act, The Judicature Act, High Court (Practice and Procedure)Rules and all other enabling Provisions of Law

2. It seeks orders;1. Spent.2. Spent.3. That this Honourable Court be pleased to reinstate and extend the orders of stay of execution issued on 20th December 2022 pending the hearing and determination of this application.4. That This Honourable court be pleased to extend the time for the 4th Appellant to deposit the security in the sum of Kshs.500,000 by Seven (7) days from the date of such extension.5. That the costs of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 8.

4. The Application is supported by the affidavit by Hamud Mohamed Osman, the 4th Appellant/Applicant, sworn on the 30th August 2023.

5. In response the Respondent filed a Preliminary Objection and a Replying Affidavit sworn on the 8th September 2023.

6. I have considered the Notice of Motion and the Affidavit in Support, the responses thereto, the rival submissions and the authorities cited. The issue for determination is whether this application is merited.

7. On the 20th December 2022, this court vide a comprehensive ruling, granted the Appellants stay of execution on some conditions. They were to comply within forty five (45) days.

8. On the 6th March 2023, the Appellants had not complied with the orders and the court granted them seven (7) days to do so failure to which the stay orders would lapse automatically.

9. As things stand, there are no orders capable of extension. When the matter came up before the Duty Judge on 30th August 2023 she did not have the benefit of perusing the physical file.

10. This could be the reason why she granted interim orders of stay.

11. I agree with counsel for the Respondent this application is res judicata.

12. I find this application to be an abuse of the court process and the same is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 17TH DAY OF OCTOBER 2023. L. KOMINGOIJUDGE