[2019] KEHC 2252 (KLR)
The court found that the applicant failed to attach or otherwise prove the existence of the judgment or decree he sought to stay or appeal against. The mere acknowledgment by the respondent of the decree's existence does not absolve the applicant from the obligation to provide documentary proof. Without such proof,...
Source-derived case information.
- Citation
- [2019] KEHC 2252 (KLR)
- Parties
- Applicant: Alfred Mambo Mbai; Respondent: Centrin Kadogo Khaemba (suing as administrator and personal representative of the estate of Johnstone Randari Walubiri)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 137 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Motion for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Burden of Proof on Applicant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Mambo Mbai
Applicant
Centrin Kadogo Khaemba (suing as administrator and personal representative of the estate of Johnstone Randari Walubiri)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decree in Butere SPMCCC No. 81 of 2017.
- 2 Whether the applicant should be granted leave to appeal out of time.
Ratio Decidendi
The court found that the applicant failed to attach or otherwise prove the existence of the judgment or decree he sought to stay or appeal against. The mere acknowledgment by the respondent of the decree's existence does not absolve the applicant from the obligation to provide documentary proof. Without such proof, the court cannot assess the merits of the application or grant the orders sought, as it would be acting in vain. Consequently, the application for stay of execution and leave to appeal out of time was dismissed for lack of merit and failure to meet the evidentiary threshold required by law.
Court Disposition
application dismissed with costs
Orders
- The Motion dated 24th August 2018 is dismissed with costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISCELLANEOUS CIVIL APPLICATION NO. 137 OF 2018
ALFRED MAMBO MBAI.......................................................................................APPLICANT
VERSUS
CENTRIN KADOGO KHAEMBA (suing administrator and personal representative of the
estate of JOHNSTONE RANDARI WALUBIRI...............................................RESPONDENT
RULING
1. The applicant has moved the court by a Motion dated 24th August 2018, seeking:-
(a) Stay of execution of judgment and decree in Butere SPMCCC No. 81 of 2017; and
(b) Leave to appeal out of time.
2. The applicant’s case is that the award of damages made in the judgement delivered on 14th June 2018 at the trial court, in his absence, was inordinately high. He was not informed of it timeously by his advocate and he desired to appeal. He avers that the insurers have settled half of the claim leaving the other half of the claim to him.
3. The application principally seeks stay of execution of a judgement and decree of the trial court. A copy of either the judgement or the decree has not been attached to the application. There is no proof that the court did deliver the judgement or pass the decree alleged. A court does not act blindly. It obliges the applicant, in such a case, to demonstrate to the court that such a judgement or decree does in fact exist, lest the court is made to act in vain. The fact that the reply by the respondent does acknowledge existence of such a decree does not absolve the applicant of the obligation to attach those documents
4. The applicant talks of being exposed due to the number of persons involved. It is not clear what he means by this in the absence of a copy of the judgement. The loss he is alleged to be exposed to, if that is what he means, cannot be assessed so long the decree that is likely to be executed against him is not attached.
5. Should leave to appeal out of time be granted? There is no evidence, or demonstration, that the judgement sought to be appealed against exists.
6. I am not persuaded that the Motion dated 24th August 2018 is merited. I hereby dismissed with costs.
DATED, SIGNED and DELIVERED at KAKAMEGA this 15th DAY OF November, 2019
W. MUSYOKA
JUDGE