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Kirata v Riteri [2024] KIHC 24; Miscellaneous Application 024-04509 (17 September 2024)

IN THE HIGH COURT OF KIRIBATI 2021

Miscellaneous Application No. 024-04509
Arising from High Court Land Appeal No. 25 of 2023

BETWEEN:
REV BARANITE KIRATA, TRUSTEE FOR KPC
Applicant

AND:
REV MAREWEIA RITERI, TRUSTEE FOR KUC
Respondent

Hearing date: 5 September 2024
Date of Judgment: 17 September 2024

Appearances: Mr Banuera Berina for the Applicant
Ms Taaira Timeon for the Respondent

JUDGMENT
__________________________________________________________

1. The Applicant, by their Notice of Motion filed on 4 September 2024 applied for an order to stay the execution of the judgment in Magistrates Court Case No. Mai Lan 25/2017 and eviction order in Magistrates Case 2024-00528 MC/LA/ST delivered on 29 August 2024.
2. There are six grounds supporting the application including,
   • That the order involves the eviction of the KPC’s pastor and Church members from the land which the Respondent alleged it owned;
   • the eviction will cause irreparable harm and damage to the Applicant’s church members who have been occupying the place from time immemorial;
   • the Respondent will not suffer undue prejudice if the stay were granted;
   • the Applicant has filed an appeal which appeal would have been heard today had Counsel for the Respondent been free to attend the hearing;
   • the appeal has merit and is most likely to succeed;
   • other ground raised in the sworn affidavit of Tatoa Kaiteie.
     
3. In considering the able and strong submissions from both parties, the Applicants’ counsel based its application to stay the execution of the lower court’s judgments with respect to section 74 of the Magistrates Court Ordiance shown below:
   

“Neither notice of appeal nor appeal to operate as stay of execution

In the case of any civil proceedings neither notice of appeal nor an appeal shall operate as a stay of execution or of proceedings under the judgment appealed from, except so far as the magistrates' court which gave such judgment, or the High Court, may direct, and any such direction may be given with or without the application of either party.”

4. As I have set out in applications like this, it is vital to mention that it is a well settled principles of law that a stay of execution is at the discretion of the court of law to be exercised judicially with respect to well-established principles as Ms Timeon submitted.
   
5. The first legal principle is that the Court does not strip a successful party of the fruits of a judgment to its disadvantage and dispossess the successful party of the funds to which she is entitled, awaiting the outcome of an appeal. See Annot Lyle (1886) 11 PD 144; Lawrence Okafor –v- Felix Nraife (16 October 1987) Supreme Court of Nigeria, S.C. 89/87; see also Fort Street Tourism Village Limited –v- Attorney General et al (28/4/08) Court of Appeal of Belize, Civ. Apps 4 & 6 of 2008.
   
6. In this current case, the Applicant’s members have been living on the land in Buota, Maiana for a very long time until the eviction order was issued on 29 August 2024. The Applicant submitted that there was an issue with the name of the land disputed in the lower court as shown in Mr Kaiteie’s affidavit, land Kabeiariki is situated in Tebiauea but the Applicant’s members live on a land in Buota, Maiana. This is something to be thoroughly considered in the substantive appeal however, it is something that I see to be a significant issue to warrant moving away from the first principle of not preventing a successful party from reaping the fruits of its judgment.
   
7. The second principle is that if a stay is not granted the applicant would be ruined and that they have some prospect of success in their appeal. This is settled in the case Lynotype-Hell Finance Ltd –v- Baker [1992] EWCA Crim 1; [1992] 4 All ER 889.
   
8. The application grounds as well the affidavits supporting this stay application set out that the prospect of success for the Applicants’ appeal and that is that they have been living on the land for a very long time. They claimed (according to their notice of appeal) that they have an arguable appeal including that the land they are living on is not land Kabeiariki.
   
9. The test to be satisfied here is at least some prospect of success so that the stay can be executed. I agree with the Applicant that even with some prospect of success in their appeal, the stay should be granted and in light of the fact that this is a Church dispute, the Applicant’s members who have been living on the land for a very long time should also be given a day in court to hear their appeal.
   
10. Even though I will be willing to have this case goes through mediation (no Rules yet), the fact that it involves a number of people made it more persuasive to grant this application so that this court will check and assess if the lower court has correctly applied the law to the facts. The status quo should be maintained until this court considers the appeal.
    
11. The final principle is that the Applicant must show special or exceptional circumstances to justify the grant of a stay.
    
12. In relation to the second principle discussed earlier, Mr Berina for the Applicants, submitted that the fact that the Applicant’s members have been living for a very long time on the land in dispute (where their Church was built), and that they have some prospect of success in their appeal to this court, are special circumstances warranting the stay of execution of the lower court’s judgments.
    
13. In light of the above reasoning and after carefully considering the application, submissions and relevant laws, I exercise this court’s discretion to grant the application for a stay of execution.
    
14. The application by the Applicants for stay of execution of Magistrates Court Case No. Mai Lan 25/2017 and eviction order in Magistrates Case 2024-00528 MC/LA/ST delivered on 29 August 2024, pending appeal is granted. Cost is reserved until the consideration of the substantive appeal.
    

ORDERS OF THIS COURT:

1. The application by the Applicants for a stay of execution of the Magistrates Court Case No. Mai Lan 25/2017 and eviction order in Magistrates Case 2024-00528 MC/LA/ST delivered on 29 August 2024., pending appeal is granted;
2. Cost is reserved until the completion of the consideration of the substantive appeal.
3. The clerk should immediately fix the date of hearing of the substantive appeal, Land Appeal 25 of 2023 and serve notices upon the parties.
   

MR ABUERA URUAABA
COMMISSIONER