[2014] KEHC 8102 (KLR)
The court held that the order dismissing the Interested Party's application to review and set aside the consent judgment was not a positive order capable of execution. The only operative part of the ruling was the award of costs, which is generally not subject to a stay of execution. Since there was no executable...
Source-derived case information.
- Citation
- [2014] KEHC 8102 (KLR)
- Parties
- Plaintiff: Ali Daud Mohamed; Defendant: Anthony Maiklya Mwanza; Defendant: Joseph Kioko Mwanza; Defendant: Commissioner of Lands; Defendant: Chief Land Registrar; Interested Party: Yasin Mohamed Jamal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2004
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Review of Judgment, Consent Judgment, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Daud Mohamed
Plaintiff
Anthony Maiklya Mwanza
Defendant
Joseph Kioko Mwanza
Defendant
Commissioner of Lands
Defendant
Chief Land Registrar
Defendant
Yasin Mohamed Jamal
Interested Party
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether there exists a positive order capable of execution that can be stayed pending appeal.
- 2 Whether the Interested Party is entitled to a stay of execution of the order dismissing his application to review and set aside the consent judgment.
Ratio Decidendi
The court held that the order dismissing the Interested Party's application to review and set aside the consent judgment was not a positive order capable of execution. The only operative part of the ruling was the award of costs, which is generally not subject to a stay of execution. Since there was no executable order other than costs, and the application did not concern the costs order, the application for stay was misconceived and without merit. The court therefore dismissed the application with costs to the Plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The notice of motion dated 16th December 2013 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
ELC CASE NO. 152 OF 2004
ALI DAUD MOHAMED………………………..…..................PLAINTIFF
VERSUS
ANTHONY MAIKLYA MWANZA &
JOSEPH KIOKO MWANZA
(Sued jointly as administrators of the estate of PHILOMENA MUENI MWANZA)
COMMISSIONER OF LANDS
CHIEF LAND REGISTRAR …………… ..……….…DEFENDANTS
AND
YASIN MOHAMED JAMAL ………..………………INTERESTED PARTY
R U L I N G
1. By a considered ruling dated 14th and delivered on 15th November 2013 the court (Waweru, J) dismissed an application by notice of motion dated 27th July 2011 filed by the Interested Party herein by which he sought an order to review and set aside the consent judgment entered herein on 17th September 2009. The court also lifted the interim injunction that had been granted on 20th March 2013.
2. The Interested Party has now filednotice of motion dated 16th December 2013. The application seeks the main order of stay of execution of the aforesaid order of dismissal of the Interested Party’s application to review and set aside the consent judgment. The order of stay is sought pending hearing and determination of an appeal against the said order of dismissal. The application has been opposed by the Plaintiff.
3. It is my considered view that this present application by the Interested Party is profoundly misconceived. By its aforesaid ruling delivered on 15th November 2013 this court simply dismissed with costs the Interested Party’s application to review and set aside the consent judgment. Apart from the order for costs, there is no other positive order in the said ruling capable of execution that might be stayed, and it is apparent that it is not the order of costs that the Interested Party is concerned with in his application. In any event, the court would hardly grant stay of execution of an order for costs.
4. The notice of motion dated 16th December 2013 is not only misconceived but lacks merit. It is hereby dismissed with costs to the Plaintiff. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 17th DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 18TH DAY OF JULY 2014