[2013] KEHC 3921 (KLR)
The court found that there was no appeal filed nor any application for stay of execution before it. The mere presentation of documents seeking leave to appeal out of time at the Court of Appeal does not amount to a stay of execution. The Civil Procedure Rules are explicit that an appeal does not automatically...
Source-derived case information.
- Citation
- [2013] KEHC 3921 (KLR)
- Parties
- Appellant: Charles Ndwiga Kanyeria; Respondent: Augustine Muturi Mairani; Respondent: Mwaniki Mairani
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application
- Outcome
- application allowed
- Judges
- HI Ong'udi
- Legal Topics
- Removal of Restrictions, Land Title, Execution of Judgment, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ndwiga Kanyeria
Appellant
Augustine Muturi Mairani
Respondent
Mwaniki Mairani
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the applicant is entitled to the removal of restrictions, inhibitions, prohibitory orders, and cautions on the specified land parcels following the court's judgment.
- 2 Whether the filing of an application for leave to appeal out of time or a potential appeal operates as a stay of execution of the judgment.
- 3 Whether there is any legal basis to prevent the implementation of the court's judgment in the absence of a stay order.
Ratio Decidendi
The court found that there was no appeal filed nor any application for stay of execution before it. The mere presentation of documents seeking leave to appeal out of time at the Court of Appeal does not amount to a stay of execution. The Civil Procedure Rules are explicit that an appeal does not automatically operate as a stay. In the absence of any stay order, there is no legal impediment to the implementation of the judgment delivered on 18/12/2012. Therefore, the applicant is entitled to have all restrictions, prohibitions, and cautions on the subject land parcels lifted, as there is no valid reason to delay execution of the court's orders.
Court Disposition
application allowed
Orders
- All restrictions, prohibitions, cautions, and similar entries lodged against title KYENI/MUFU/4207 and KYENI/MUFU/4210 are to be lifted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Civil Appeal 13 of 2010 [if gte mso 9]><xml>
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CHARLES NDWIGA KANYERIA ............................APPELLANT/RESPONDENT
VERSUS
AUGUSTINE MUTURI MAIRANI.....................1ST RESPONDENT/APPLICANT
MWANIKI MAIRANI............................................2ND RESPONDENT/APPLICANT
R U L I N G
This is the application dated 27/2/2013. It is by the respondent/applicant. He is asking the Court to order the Land Registrar Embu to remove all restrictions, inhibitions, prohibitory orders and/or cautions registered against parcel No. KYENI/MUFU/4207 & 4210. In his affidavit the applicant refers to the judgment of this court delivered on 18/12/2012.
The respondent's counsel was served on 11/3/2013 with the application but there is no replying affidavit filed. The respondent presented to court documents he has filed at Nyeri Court of Appeal.In them he seeks leave to file appeal out of time. Judgment herein was delivered on 18/12/2012 and the Court explained to the respondent that he had a right to appeal within 30 days.
There is nothing on record to show that any appeal has been filed. Even if one was filed the rules are clear that an appeal in itself does not operate as stay Ref. Order 24 Rule 6(1) of the Civil Procedure Rules. There has been no application for stay filed herein. In light of the judgment delivered herein on 18/12/2012 I find nothing to stop the applicant from implementing the orders therein.
I therefore allow the application to have all the restrictions, prohibitions, cautions etc. lodged against the title KYENI/MUFU/4207 & 4210 lifted.
DELIVERED, SIGNED AND DATED AT EMBU THIS 16TH DAY OF APRIL 2013.
H.I. ONG'UDI
JUDGE
In the presence of:-
Both parties
Njue CC
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