[2010] KEHC 1133 (KLR)
The court found that since the appellants' own suit was struck out, there was no executable order or decree remaining against them. Any interim orders that may have existed were automatically vacated or discharged upon dismissal of the suit. The court held that the application for stay of execution was unsustainable...
Source-derived case information.
- Citation
- [2010] KEHC 1133 (KLR)
- Parties
- Appellant: Abdullahi Sheikh Mohamed; Appellant: John Mburu Ihugu; Respondent: Dayalal Ramji
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 238 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Pecuniary Jurisdiction, Land Adjudication Consent, Interim Orders, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdullahi Sheikh Mohamed
Appellant
John Mburu Ihugu
Appellant
Dayalal Ramji
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether there exists an executable order or decree against the appellants following the striking out of their suit.
- 2 Whether the appellants are entitled to a stay of execution of the ruling and orders dismissing their suit.
- 3 Whether the absence of consent under Section 30(1) of the Land Adjudication Act and the pecuniary value of the suit property affected the court's jurisdiction.
Ratio Decidendi
The court found that since the appellants' own suit was struck out, there was no executable order or decree remaining against them. Any interim orders that may have existed were automatically vacated or discharged upon dismissal of the suit. The court held that the application for stay of execution was unsustainable in law as there was nothing to stay, and the appellants would not suffer substantial loss. The ruling appealed from did not render the appeal nugatory, and the proper procedure for preservation of rights pending appeal would have been an application for injunction, not a stay of execution.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
- Any interim orders granted herein are vacated and/or discharged.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL 238 OF 2009
1. ABDULLAHI SHEIKH MOHAMED
2. JOHN MBURU IHUGU …………………………………..APPELLANTS
VERSUS
DAYALAL RAMJI …………………………...…..…...RESPONDENT
R U L I N G
The Appellants lodged an appeal onthe 14th December 2009against the decision by the Senior Resident Magistrate in Chief Magistrate’s Court Civil case No. 2861 of 2009 delivered on9th December 2009.
In the said Ruling appealed from the aforesaid Honourable Court struck out the plaintiff’s entire suit on grounds of inter alia, jurisdiction.The Respondent had taken up Preliminary objections on various points of law.
The court held inter alia that no consent had been obtained under the provisions of Section 30(1) of the Land Adjudication Act before the institution of the suit and also that the suit property was valued more than Kshs.6,000,000/- beyondthe pecuniary jurisdiction of the court which was Shs.3 million at the most.
The Appellants have now filed this application for stay of execution of the Ruling and order delivered in the said suit which dismissed the suit and therefore the Interim Orders that were in force at the material time.
The application is opposed.I have considered the applications, the rival affidavits and submissions.
The plaintiffs’ suit was for the following orders:-
1. A permanent injunction restraining the Defendant from interfering in any way with Plots No. 1 UNS – BCR PLOT – D and Grant No. LR No.40488 respectively.
2. A declaration that the plaintiff are the rightful owners of Plot Nos. UNS.BCR Plot – D and Grant No. L.R. 40488.
It is clear that once the suit was struck out, then nothing remained of the
Suit and there are no orders that are executable against the Appellants.It was their own suit which was struck out and /or dismissed.As a result the Interim order which may have existed automatically became vacated or discharged.In terms of Order 41, Rule 4, there is no order capable of being executed.It is not like the Appellant’s applied for injunction pending appeal which is a totally different procedure altogether.
I do hold that in the circumstances of the case, the applicants will not suffer any substantial loss as there is no executable decree or order.Also, the said ruling does not by itself render the appeal nugatory.
The application is not sustainable in law and the same is hereby dismissed with costs to the Respondent.Any Interim orders granted herein are vacated and/or discharged.
Dated and delivered atMombasathis 28th day of June 2010.
M. K. IBRAHIM
J U D G E
Coram
Ibrahim, J
Court clerk – Kazungu
Mr. Muhuni for the Respondent
Ms. Wangari for the Applicant
Ruling delivered in their presence.
Ibrahim, J