[2018] KEELC 2561 (KLR)
The court found that the applicant had not filed a notice of appeal or applied for proceedings, and the time for filing such notice had already lapsed. Under Order 42 Rule 6 of the Civil Procedure Rules, a stay of execution cannot be granted where no appeal has been preferred or notice of appeal filed. The...
Source-derived case information.
- Citation
- [2018] KEELC 2561 (KLR)
- Parties
- Plaintiff: Bernard Kariuki Waruru; Defendant: Francis Waweru; Defendant: Moses Mwangi; Defendant: The City Council of Nairobi; Defendant: David Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Land Case 357 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the plaintiff/respondent
- Legal Topics
- Stay of Execution, Appeal Procedure, Notice of Appeal, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bernard Kariuki Waruru
Plaintiff
Francis Waweru
Defendant
Moses Mwangi
Defendant
The City Council of Nairobi
Defendant
David Mwangi
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the application is an abuse of the court process due to failure to file a notice of appeal.
Ratio Decidendi
The court found that the applicant had not filed a notice of appeal or applied for proceedings, and the time for filing such notice had already lapsed. Under Order 42 Rule 6 of the Civil Procedure Rules, a stay of execution cannot be granted where no appeal has been preferred or notice of appeal filed. The applicant's explanation that he was awaiting a survey report was insufficient to justify the delay or to invoke the court's jurisdiction for stay. Consequently, the application was found to lack merit and to constitute an abuse of the court process, warranting its dismissal with costs to the plaintiff/respondent.
Court Disposition
application dismissed with costs to the plaintiff/respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the plaintiff/respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MILIMANI
LAND CASE NO. 357 OF 2010
BERNARD KARIUKI WARURU................................PLAINTIFF
-VERSUS-
FRANCIS WAWERU.......................................1ST DEFENDANT
MOSES MWANGI..........................................2ND DEFENDANT
THE CITY COUNCIL OF NAIROBI............3RD DEFENDANT
DAVID MWANGI............................................4TH DEFENDANT
RULING
1. This is a Ruling in respect of an application by the fourth defendant/applicant seeking stay of execution pending appeal. The applicant contends that he has instructed his advocates to file an appeal against judgement delivered on 23rd November 2017. The applicant contends that his appeal has high chances of success and that if stay is not granted, he will suffer substantial loss in that his permanent building would have been demolished.
2. The Plaintiff/Respondent opposed the applicant’s application based on grounds of opposition filed in court on 18th February 2018. The respondent contends that the applicant’s application is an abuse of the court process as the applicant has neither filed notice of appeal or applied for proceedings. The application is therefore an afterthought.
3. I have gone through the application herein as well as the opposition to the same by the respondent. I have also perused the court record and gone through the submissions by the parties. It is clear that the applicant has not filed any notice of appeal or applied for proceedings. The applicant in his submissions contends that he has not preferred any appeal as he is awaiting for a survey report which will be crucial at the intended appeal.
4. The time for filing notice of appeal has already lapsed. Order 42 Rule 6 (1) the Civil Procedure Rules is clear that no appeal shall operate as stay of execution of proceedings. In this case, there is no appeal which has been preferred. Under Order 42 Rule 6 (4), an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court, notice of Appeal has been given. As the applicant has not filed any notice of Appeal, he cannot move the court for stay of execution under Order 42 of the Civil Procedure Rules. I find that the applicant’s application not only lacks merit but is an abuse of the process of the Court. The same is hereby dismissed with costs to the Plaintiff/Respondent.
It is so ordered
Dated, Signed and delivered at Nairobi on this 24th day of May 2018.
E.O.OBAGA
JUDGE
In the Presence of:-
Mr Mogoi for Mr Kamau for Plaintiff
Court Assistant: Kevin
E.O.OBAGA
JUDGE