[2017] KEHC 6014 (KLR)
The court found that the applicants had raised triable issues and that the interests of justice warranted the grant of a stay of execution. However, the stay was made conditional upon the applicants filing and serving their appeal within 60 days of the ruling, or seeking the court's intervention if proceedings were...
Source-derived case information.
- Citation
- [2017] KEHC 6014 (KLR)
- Parties
- Appellant: Ahmed Abass Edi; Appellant: Abddinasir Adan; Respondent: Hassan Abdi Adan
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Legal Topics
- Stay of Execution, Appeals Process, Succession Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Abass Edi
Appellant
Abddinasir Adan
Appellant
Hassan Abdi Adan
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 2 Whether the applicants have demonstrated sufficient cause for the grant of stay of execution.
Ratio Decidendi
The court found that the applicants had raised triable issues and that the interests of justice warranted the grant of a stay of execution. However, the stay was made conditional upon the applicants filing and serving their appeal within 60 days of the ruling, or seeking the court's intervention if proceedings were not supplied. Failure to comply with these conditions would result in the lapse of the stay order. The court exercised its discretion to balance the rights of both parties and ensure the appeal process was not frustrated by procedural delays.
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Stay of execution of the judgment and decree and all consequential orders in Kadhi's case number 90 of 2015 pending determination of the intended appeal, subject to conditions.
- Stay of execution of the ruling and order of the Moyale Kadhi's court in succession cause No.43 of 2012 issued on 23rd November 2016 pending determination of the intended appeal, subject to conditions.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO.4 OF 2016
1. AHMED ABASS EDI
2. ABDDINASIR ADAN.........................APPELLANTS/APPLICANTS
VERSUS
HASSAN ABDI ADAN...................................................RESPONDENT
RULING
The applicants' application is brought by way of notice of motion dated 5th December 2016 pursuant to sections 1A,1B, and 3A of the Civil Procedure Act and all other enabling provisions of the law. The applicants were seeking four orders but the first two have been spent. The orders that are now in issue are as follows:
1. That there be a stay of execution of the judgment and decree and all the consequential orders in Kadhi's case number 90 of 2015 pending inter-parte hearing and determination of the intended appeal.
2. That pending hearing and determination of the appellants' intended appeal herein, the execution of the ruling and order of the Moyale Kadhi's court, in succession cause No.43 of 2012 issued on 23rd November 2016 be stayed.
3. Costs of this application be in the cause.
I have perused the affidavits by both parties and the submissions by their respective counsel. The applicants and the respondent have raised triable issues. These issues can be addressed at the time of the hearing of the appeal.
The applicants have indicated that they have not been able to file the appeal for they have not obtained the court proceedings.
I am persuaded to issue a stay order on the following conditions:
(a) That the applicants file and serve their appeal within 60 days of the ruling.
(b) If they fail to do so on failure to be supplied with the proceedings, then they ought to seek this court's intervention at the earliest opportunity.
(c) Failure to comply with (a) and (b) above the stay order will lapse.
DATED at MARSABIT this 19th Day of April 2017
KIARIE WAWERU KIARIE
JUDGE.