[2019] KEELC 3455 (KLR)
The court found that it retains jurisdiction under Order 42 of the Civil Procedure Rules to entertain an application for stay, including oral applications. However, since a 14-day stay had already been granted at the time of the ruling and the appellant took no action within that period, there was no justification...
Source-derived case information.
- Citation
- [2019] KEELC 3455 (KLR)
- Parties
- Appellant: Cooperative Bank of Kenya Limited; Respondent: Josephat Kirigia Aburi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 25 of 2014
- Procedural Posture
- Stay Application / Ruling on Oral Application for Further Stay Pending Formal Application
- Outcome
- Application for further stay declined; matter marked as closed.
- Legal Topics
- Stay of Execution, Court Discretion, Functus Officio, Oral Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cooperative Bank of Kenya Limited
Appellant
Josephat Kirigia Aburi
Respondent
Procedural Posture
Stay Application / Ruling on Oral Application for Further Stay Pending Formal Application
Legal Issues
- 1 Whether the court has jurisdiction to grant a further stay of execution after delivering its ruling.
- 2 Whether an oral application for stay is permissible under the Civil Procedure Rules.
- 3 Whether the appellant is entitled to a further stay after the lapse of the initial stay period.
Ratio Decidendi
The court found that it retains jurisdiction under Order 42 of the Civil Procedure Rules to entertain an application for stay, including oral applications. However, since a 14-day stay had already been granted at the time of the ruling and the appellant took no action within that period, there was no justification for granting a further stay. The court exercised its discretion against the appellant, holding that the opportunity to act had lapsed and no further orders of stay were warranted. The matter was therefore marked as closed.
Court Disposition
Application for further stay declined; matter marked as closed.
Orders
- No further stay of execution is granted.
- The matter is marked as closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELCA CASE NO. 25 OF 2014
COOPERATIVE BANK OF KENYA LIMITED........................APPELLANT
VERSUS
JOSEPHAT KIRIGIA ABURI.................................................RESPONDENT
ORDER/RULING
1. This court has been requested to grant a further 7 days stay so that the appellant can file a formal application for stay.
2. The application has been objected to by the respondent who avers that the application ought to be made at the Court of Appeal and that this court is functus official.
3. I have considered the arguments raised herein. I find that pursuant to order 42 of the Civil Procedure Rules, this court has the mandate to hear and determine an application for stay. Further such an application can also be made orally. The court has the discretion to grant such orders that are fair and just.
4. I find that this court delivered a decision (ruling) on 27. 3.2019 and the court was requested to grant a stay of 14 days. The court obliged them and a stay of 14 days was granted.
5. The appellant had a window of opportunity to take action that he desired during the intervening period. He however did nothing.
6. As such I decline to grant any orders of stay.
7. This matter is marked as closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF APRIL, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Mutegi for appellant
Kimathi Arimi for respondents
HON. LUCY. N. MBUGUA
ELC JUDGE