Samwel Orwa Wayuga v Church Commissioners of Kenya of The Anglican Church of Kenya [2017] KEELC 189 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT MIGORI

ELC CASE NO.  56  OF 2017

(FORMERLY KISII  ELC  CASE NO. 6 OF 2015)

SAMWEL ORWA WAYUGA…………............….…..PLAINTIFF/RESPONDENT

VERSUS

THE CHURCH COMMISSIONERS OF KENYA                                                       

OF THE ANGLICAN CHURCH OF KENYA  ……..DEFENDANT/APPLICANT

RULING

1. I have heard Mr. Ochwangi counsel for the Defendant / Applicant and studied the entire Notice of Motion dated 23/6/2017. I consider  the orders one to eight sought, the grounds  of the application and  the documents in support of the Notice Motion application.

2. The Plaintiff / Respondent counsel was duly served for inter partes hearing fixed for today.  An affidavit of service sworn on 28/6/2017 is in support of the service thereof. The Plaintiff / Respondent’s counsel is absent without any reason or at all.

3. I note the orders sought in the Notice of Motion.  Mr. Ochwangi has urged this court to grant Order No. 5 namely:-

“The Honourable Court be pleased to grant  an Order of stay of Execution of the Judgment and Decree of this Honourable  Court made on the 27^th day of June 2016, particularly, the limb thereof  touching on the permanent Injunction, pending the hearing and determination of the Intended Appeal to the Honourable Court of Appeal.”

4. The judgment in this matter  was prepared by S. Okongo J. It was delivered by J. Mutungi J at Kisii ELC on 27/6/2016. The period of  twelve months of the suspended permanent injunction has elapsed.   The Defendant / Applicant is a religious organization bound to suffer irreparable harm if the suspended permanent injunction is not extended bearing in mind the holding in Giella =vs= Cassaman Brown (1973) EA 358.  The reasons given by the Defendant / Applicant’s counsel,m   Mr. Ochwangi, include the delay in the typing of proceedings for the preparation of record of appeal. I find the  application especially for order number 2 merited.  The order  reads:-

“Pending the hearing and determination of the instant Application, the Honourable Court be pleased to grant an Extension relating to the Suspension of the Implementation and/or Enforcement of the Order of the Permanent Injunction issued to and/or in favour of the Plaintiff/Respondent herein in terms of the Judgment rendered on the 27^th day of June 2016.”

5. Consequently and for the foregoing reasons, I direct and order as    herein under:-

(a) The period of suspension of the permanent injunction and/or stay of the same further to judgment delivered on 27/6/2016 is  hereby extended for sixty(60) days from the date hereof.

(b) Certified copies of proceedings be supplied to the Defendant /Applicant’s counsel urgently.

(c ) Mention 20/9/2017 for directions

(d) The Plaintiff / Respondent’s counsel be served.

DELIVERED, SIGNED and DATED in open court at MIGORI this 29^th day of June 2017.

G. M. A. ONGONDO

JUDGE

In the presence of:

Mr. Ochwangi counsel instructed by Oguttu Mboya for the   Applicant / Defendant -

Tom Otieno;   Court Assistant                                                                                                                                 

G. M. A.  ONGONDO

JUDGE