Pius Sikwembe Masai v Martin Nabangi Mulongo [2014] KEHC 4152 (KLR)

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISCELLANEOUS  CIVIL   APPL. NO. 29   OF  2014

PIUS  SIKWEMBE MASAI.............…..............................APPLICANT

VERSUS

MARTIN NABANGI MULONGO.......…........................ RESPONDENT

RULING

1.   The applicant Pius  Nabangi Sikwembe  Masai moved the  court vide his application dated 12. 3.2014 seeking for orders;

1.   That this honourable court do allow the respondent be   compelled to   sign transfer forms for subdivision   for one acre (0. 4 Ha) of land curved from E. BUKUSU/N.  KANDUYI/8482 to the applicant's names and that in   default the court to delegate its powers to the Deputy  Registrar to sign all the necessary documents on behalf     of the respondent.

2.   The further ground to be adduced at the hearing of this   application.

3.   Costs of this application to be provided for.

2.  The application is opposed.  The respondent filed an affidavit    in reply and at paragraph 2 thereof deposed that he has filed    an   appeal in the high court to oppose the motion.  He  annexed the notice of motion as filed to this replying affidavit.  He deposed that this application is meant to      transfer his land and he prayed the   motion be stayed     pending hearing of his appeal.

3.   I have perused through the pleadings and considered the oral      submissions made.  Ms. Nanzushi advocate for the applicant      submitted that there is no appeal that is pending in      respect of the judgment of this court delivered in 2012.  Mr. Areba advocate on   his part for the respondent submitted     that there does exist an      application for stay and leave to   appeal out of time.  That their      application will be overtaken by events if this application is allowed.  He urged the court      to   suspend this motion until they would have prosecuted    their     application.

4.   The application filed by the respondent and annexed to his      replying affidavit is dated 15th May 2014 and filed in    court     on 18. 5.14.  This notice of motion is dated 12th March 2014 and filed in court on 13. 3.14.  There is a procedure to be   followed if a party wishes to stay proceedings.  The filing of an application does not of itself act as   a stay of      proceedings.  The respondent in the annexed application      sought    stay of   execution of the decree but not stay of      proceedings.  As at     this date of hearing the present application, there is no appeal filed nor an order of stay of     proceedings   in force. There is nothing put forward by     the respondent to this court that  can make it not decline to grant the orders prayed for.  The prayer seeking this court‘s order to compel     the respondent to sign transfer      forms for subdivision for    one acre      (0. 4 ha)  to be    curved      from L.R. E. Bukusu/N. Kanduyi/8482 to the applicants    name be and is hereby     granted.  In default of the respondent executing the documents, the Deputy   Registrar     shall sign all those    necessary documents on behalf of the   respondent transferring the one acre portion being     curved out    of L.R no. E.Bukusu/N.Kanduyi/8482 in favour of the applicant. Each party to bear their costs.

Dated, Signed and Delivered in Bungoma this 8th day of July    2014.

A. OMOLLO

JUDGE