[2020] KEELC 2724 (KLR)
The court found that the application for stay of execution was filed by an advocate who had not properly come on record as required by the Civil Procedure Rules. Furthermore, the orders sought to be stayed had already been implemented, specifically the fixing of land boundaries, and the applicants did not controvert...
Source-derived case information.
- Citation
- [2020] KEELC 2724 (KLR)
- Parties
- Applicant: Chemoiwa Ole Sayielel; Applicant: Marikulmuran Ene Sayialel; Respondent: Joseph Santian; Respondent: Dominic Nuna Santian; Respondent: Richard NchuuChu Santian
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 323 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Stay of Execution, Advocate on Record, Appeal Procedure, Implementation of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chemoiwa Ole Sayielel
Applicant
Marikulmuran Ene Sayialel
Applicant
Joseph Santian
Respondent
Dominic Nuna Santian
Respondent
Richard NchuuChu Santian
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution is properly before the court given the advocate's status.
- 2 Whether the application for stay of execution has been overtaken by events due to implementation of the court's orders.
Ratio Decidendi
The court found that the application for stay of execution was filed by an advocate who had not properly come on record as required by the Civil Procedure Rules. Furthermore, the orders sought to be stayed had already been implemented, specifically the fixing of land boundaries, and the applicants did not controvert this fact. As such, the application was both procedurally defective and substantively moot, leading to its dismissal with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 17/1/19 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 323 OF 2017
FORMERLY KISII NO. 103 OF 2014
CHEMOIWA OLE SAYIELEL...........................1ST PLAINTIFF/APPLICANT
MARIKULMURAN ENE SAYIALEL..............2ND PLAINTIFF/APPLICANT
-VERSUS-
JOSEPH SANTIAN.......................................1ST DEFENDANT/RESPONDENT
DOMINIC NUNA SANTIAN......................2ND DEFENDANT/RESPONDENT
RICHARD NCHUUCHU SANTIAN..........3RD DEFENDANT/RESPONDENT
RULING
The Applicant had by a Notice of Motion dated 17th January, 2019 sought for orders of stay of execution of the implementation and enforcement of the orders of the court delivered on 27th September, 2018 pending the hearing and determination of an Appeal filed. The Application was based on the grounds that the applicant had already preferred an Appeal against the ruling of the court and that the appeal has a high chance of success.
The Application was opposed by the respondent on the grounds that the applicants advocate is not properly on record and the suit herein was already determined by court and judgment already entered and further that the court had already determined the matter herein and the orders of the court have already been effected and hence the application has been overtaken by events.
I have considered the application before me from the record it is clear that this is an application that was filed by the firm of Ochengo-Onduso and Company advocates who came on record when the appeal was filed. The appellant was previously represented by the firm of Ogutu, Ochwangi, Ochwal advocates and this being an appeal it would have been proper for the firm of Ochengo-Onduso and company advocates to first seek for the leave of the court to file the instant Application. That having not sought for leave I thus find that the application before me is improperly before the court.
The respondent also contends that the application has been overtaken by events as the registrar has also implemented the order of the court as the boundaries of the land were fixed on 15/1/2019. This position has not been controverted by the applicants and in the circumstances, I find that there is no substance or order that the court can stay at this juncture.
The upshot of the above is that I find the application dated 17/1/19 was filed by an advocate who was not properly on record and that the application has been overtaken by events and in the circumstances I dismiss the application with costs.
DATED, SIGNED and DELIVERED IN OPEN COURTatNAROKon this 5THday of MAY, 2020.
Mohammed Kullow
Judge
5/5/2020
In the presence of: -
CA:Chuma
Mr Tanyasis for Onduso for the Plaintiff
N/A for the Respondent
Mohammed Kullow
Judge
5/5/2020