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Francis Kamuta M'thiruaine - Docx Submissions

The document outlines the Respondent's written submissions in a legal case involving a motion filed by the Applicant seeking to stay execution of ex-parte orders issued on May 2, 2024, regarding a land parcel. The Respondent argues that the Applicant has failed to establish sufficient grounds for the stay and questions the validity of the Applicant's claims about the land's acreage. The conclusion asserts that the motion lacks merit and should be dismissed with costs to the Respondent.

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4 views5 pages

Francis Kamuta M'thiruaine - Docx Submissions

The document outlines the Respondent's written submissions in a legal case involving a motion filed by the Applicant seeking to stay execution of ex-parte orders issued on May 2, 2024, regarding a land parcel. The Respondent argues that the Applicant has failed to establish sufficient grounds for the stay and questions the validity of the Applicant's claims about the land's acreage. The conclusion asserts that the motion lacks merit and should be dismissed with costs to the Respondent.

Uploaded by

mwenda mworia
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATE’S COURT AT TIGANIA


ELC SUIT NO. 28B .OF 2016

JUSTUS MUGAA M’IMPWI………..…….....……………………….


…....PLAINTIFF/APPLICANT

VERSUS
FRANCIS KAMUTA
M’THIRUAINE..…….……………….…….DEFENDANT/RESPONDENT

RESPONDENT’S WRITTEN SUBMISSIONS

A. INTRODUCTION

By a Notice of motion dated 30th May, 2024, pursuant to Section 1A,1B,3,&


3A, of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules,
2010, the Applicant sought the following orders; -

a) Spent.
b) THAT pending inter-parties hearing of this application, the
Honourable Court be pleased to stay the execution or implementation
of the Ex-parte orders dated 2nd May, 2024.
c) THAT pending the hearing and determination of this application, the
Honourable Court be pleased to stay the execution of the Ex-parte
orders dated 2nd May, 2024.
d) THAT the Ex-parte orders dated 2nd May, 2024 be set aside and the
application dated 27th February, 2024 be heard inter-parties.
e) THAT costs be provided for.

Your Honour, the application is premised on the grounds set out on its face
and the Supporting Affidavit of JUSTUS MUGAA M’IMPWI. The applicants
aver that the orders dated 2nd may, 2024 were issued ex-parte without
granting the applicant an opportunity to be heard and that the same has far-
reaching consequences and if implemented the applicant will lose the whole
Land Parcel No. ATHINGA/ATHANJA/3500 which measures 0.24 Ha or 0.59
Acres.

Your Honour, the application was opposed. The Respondent filed a Replying
Affidavit dated 25th June, 2024 in response to the Application. It is the
Respondent’s assertion that the allegations by the Applicant that the suit
property measures 0.59 acres are false and misleading; that the decree
annexed by the applicant is incomplete as exhibited in annexure “JMM4”
hence making the application fatally defective, and that the orders issued
on 2/5/2024 were issued ex-parte as the respondent was only seeking
security and needed not to be served upon the applicant.

B. DETERMINATION AND ANALYSIS


i. Whether the applicant is entitled to stay of execution of the
orders of the court dated 2/05/2024.
ii. Whether the Plaintiff/ Applicant has made out a case for setting
aside the ex parte orders entered 2 nd May, 2024 and all
consequential orders.

A. Whether the Applicant is entitled to Stay of Execution of orders


of the court dated 2/05/2024

Your Honour, an applicant seeking for stay of execution has to establish


that he/she has a sufficient cause for seeking the orders, that she stands
to suffer substantial loss if the orders are not granted and lastly that he
is willing to furnish security for the due performance of the decree. None
of the above has been pleaded by the applicants in their application and
therefore a stay order cannot issue in favour of the applicant.

Your Honour, the Respondent’s response to an order of Stay of Execution


of the orders of the court dated 2/05/2024, is that the applicant has not
denied the existence of the decree dated 3/8/2021 which he has not filed
an application for stay of the same but has jumped guns to stay the
implementation of the orders dated 2/5/2024 in which they are; behind
the back door trying to stay the execution of the main decree dated
3/08/2021 through the same.

Your Honour, the orders issued on 2/5/2024 were issued ex-parte and the
respondent was only seeking security with regards to the implementation
of the decree dated 3/8/2021 and the same needed not to be served upon
the applicant. Further that there was no compromise of the decree that
was reached through an elder’s resolution award dated 16/9/2023 as the
respondent did not participate in the process as the matter was before
this Honourable court and therefore cannot be made reference to the
same. If at all the applicant wanted to stay the decree, then he would
have gone through the court process instead he deviated and took
another route to circumvent the implementation of the decree through
the council of elders while the matter was before this court.

Your Honour, the lower court’s file was taken away before the final
orders were given in Meru ELC APPEAL NO. E0110/2021 and that the
lower courts file had nothing to do with the final orders of taxation; it
further did not prevent the applicant from filing an application seeking
stay of execution of the decree dated 3/8/2021.

Your Honour, the applicant avers that the decree sought to be


implemented has a fundamental mistake in that it makes reference to a
portion measuring 0.60 Acres yet the entire suit Land measures 0.24 Ha
or 0.59 Acres as per the copy of the certificate of official search annexed
thus incapable of implementation.
Your Honour, the copy of the certificate of official search that the
applicant is relying on shows that he was registered on 19/01/2015 and
the title deed was re-issued on 11/01/2017. To the contrary Your Honour,
the Confirmation Letter dated 23/08/2010 produced by the applicant in
his documents with regards to Land Parcel No. 3500
ATHINGA/ATHANJA ADJUDICATION SECTION, shows that the suit land
measure 1.40 Acres and now he says that it measures 0.59 Acres. The
question begs, who’s fooling who?

Your Honour, the applicant has never brought up the issue concerning
the acreage of the suit land during the trial until the judgment was
made; almost 3 years down the line. Did he dispose a part of the suit land
during the pendency of the suit? Why does the certificate of official
search read that he was re-issued with the title deed on 11/01/2017?
These are concerns the respondent is raising culminating as to why the
applicant is bringing up the issue of acreage at this moment when the
decree is on the verge of being implemented and not during the
pendency of the suit itself. A further question begs; if the applicant had
bought 0.016 acres from MR. M’ARUNGAI NGUYA, then how would he
have transferred 0.06 acres to the respondent which the respondent has
already developed? The respondent ought to respondent to such
pertinent issues.

B. Whether the Applicant has made out a case for setting aside
the ex parte orders entered 2nd May, 2024 and all consequential
orders.

Your Honour, the grounds for setting aside an ex-parte orders are well
settled. The grant of the order of setting aside an ex-parte orders is
discretionary in nature and the court in determining the same ought to
exercise such powers judicially taking into account the circumstances of the
case.

The Court retains unfettered discretion in determining whether or not to set


aside such an order. In so doing, the Court should consider the length of
time taken, if it raises triable issues and also the prejudice that may arise
and, generally, the broad interests of justice in the matter. That discretion is
however not to be exercised in favour of a party that is un-deserving of such
a remedy which is an equitable one. This was held by HARRIS J. in SHAH
VS MBOGO 1967 E.A 116 and approved in MBOGO VS SHAH 1968 E.A
93:

“This discretion is intended so to be exercised to avoid injustice


or hardship resulting from accident, inadvertence, or excusable
mistake or error, but is not designed to assist a person who has
deliberately sought whether by evasion or otherwise, to obstruct
or delay the course of justice”
Even though the grant of stay of existing orders can be quite desirable in
the obtaining circumstances. The same cannot be a matter of course. It
rests upon genuine conditions, grounds, merit and dispatch; see the Court
of Appeal decision in Malindi Law Society of Kenya v Law Society of
Kenya Nairobi Branch and 5 others Civil Application No. 20 of 2017
(2017) eKLR.

Your Honour, the maxims of Equity; ‘Equity assists the vigilant and not the
indolent’ and ‘he who comes to equity must come with clean hands’ are
applicable in the present case. Since the inception of this matter, Your
Honour, the applicant has never brought up the issue concerning the
acreage of the suit land during the trial until the judgment was made;
almost 3 years down the line. Why now? Why insinuate that a compromise
on the decree was reached through an elder’s resolution award dated
16/9/2023 and the respondent did not participate in the process as the
matter?

CONCLUSION

To the foregoing Your Honour, we submit that the Notice of Motion dated
30th May, 2024 lacks merit and the same ought to be dismissed with costs to
the Respondent.

Attached thereto find the said authority for your perusal and consideration.

1. Kuyiamo Ole Mosompe v Kaikai Ole Karbolo [2021] eKLR

We humbly submit.

DATED AT MERU THIS……………………DAY OF……………………………


2024

MAITAI RIMITA & CO


ADVOCATES FOR THE DEFENDANT/RESPONDENT

DRAWN & FILED BY:


MAITAI RIMITA & CO
ADVOCATES
STANDARD BANK BUILDING, MOI AVENUE
P.O BOX 3151 – 60200
MERU

TO BE SERVED UPON:
MITHEGA & KARIUKI
ADVOCATES
P.O BOX 612 – 60200
MERU

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