[2023] KEHC 25681 (KLR)
The High Court found that since the lower court had already declined to grant a stay of proceedings and the matter had proceeded to hearing and was now pending judgment, any ruling on the application for stay of execution would be otiose. The application was therefore struck out as it no longer served any practical...
Source-derived case information.
- Citation
- [2023] KEHC 25681 (KLR)
- Parties
- Applicant: AJO; Respondent: TWN
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E015 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application struck out as otiose
- Judges
- PM Nyaundi
- Legal Topics
- Stay of Execution, Children Custody, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
AJO
Applicant
TWN
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of execution pending appeal against the ruling of the Chief Magistrate's Court in a children's matter.
- 2 Whether the application for stay is rendered moot where the lower court proceedings have already advanced to judgment stage.
Ratio Decidendi
The High Court found that since the lower court had already declined to grant a stay of proceedings and the matter had proceeded to hearing and was now pending judgment, any ruling on the application for stay of execution would be otiose. The application was therefore struck out as it no longer served any practical purpose. The applicant retains the right to appeal the lower court's decision once judgment is delivered.
Court Disposition
application struck out as otiose
Orders
- The application dated 23rd February 2023 is struck out.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
AJO v TWN (Civil Appeal E015 of 2023) [2023] KEHC 25681 (KLR) (Family) (3 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25681 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Civil Appeal E015 of 2023
PM Nyaundi, J
November 3, 2023
Between
AJO
Applicant
and
TWN
Respondent
(Being an Appeal for Stay of Execution pending Appeal of the Ruling of Honourable R. O. Mbogo (MR) of the Chief Magistrate’s Court at Nairobi delivered on 3rd February 2023 in Children’s Case No. E969 of 2022)
Ruling
Introduction 1. The Application for determination is Notice of Motion dated 23rd February 2023, in which the Applicant sought to set aside/ vary the orders of the Lower Court in the impugned ruling.
2. I have had the opportunity to peruse the lower court file and observe that the Court having declined to grant stay of proceedings, the matter proceeded to hearing and is pending judgment before the trial Court.
3. In the circumstances a ruling by this Court will be otiose. For that reason, I strike out this Application with no orders to costs. In the event the Applicant is dissatisfied with the decision of the lower court he can file an appeal.
It is so ordered
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER ,2023. P. NYAUNDIJUDGEIn the presence of:Ms. Thuku for the RespondentMs. Njoroge h/b for Ms Akedi for the for the ApplicantSylvia Court Assistant