[2023] KEELC 18482 (KLR)
The court found that the conditional stay of execution granted by Olola J was self-executory and expressly provided that failure to deposit Kshs 100,000/- within 30 days would result in the dismissal of the application with costs. The respondent failed to comply with this condition since October 2, 2020 and did not...
Source-derived case information.
- Citation
- [2023] KEELC 18482 (KLR)
- Parties
- Plaintiff: Mutaha Ahmed Dahman; Plaintiff: Alamin Ahmed Dahman (Suing As Administrators Of The Estate Of Maliam Bin Said); Defendant: Athman Sudi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 24 of 2012
- Procedural Posture
- Environment and Land Case / Ruling on Application to Vacate Stay Orders
- Outcome
- application allowed; previous application dismissed with costs
- Judges
- EK Makori
- Legal Topics
- Stay of Execution, Conditional Orders, Non Compliance With Court Orders, Vacation of Stay, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutaha Ahmed Dahman
Plaintiff
Alamin Ahmed Dahman (Suing As Administrators Of The Estate Of Maliam Bin Said)
Plaintiff
Athman Sudi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Vacate Stay Orders
Legal Issues
- 1 Whether the conditional stay of execution granted by Olola J should be vacated due to non-compliance with the deposit condition.
- 2 Whether further adjournment should be granted to allow respondent's counsel to cease acting.
Ratio Decidendi
The court found that the conditional stay of execution granted by Olola J was self-executory and expressly provided that failure to deposit Kshs 100,000/- within 30 days would result in the dismissal of the application with costs. The respondent failed to comply with this condition since October 2, 2020 and did not provide any explanation for the default. The court held that there was no basis for further adjournment to allow the respondent's counsel to cease acting, as the operative orders had already taken effect by operation of law. Consequently, the application to vacate the stay was allowed, and the earlier application for stay stood dismissed with costs.
Court Disposition
application allowed; previous application dismissed with costs
Orders
- The application dated May 5, 2023 is allowed with costs.
- The application dated October 24, 2019 stands dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
Dahman & another v Sudi (Environment & Land Case 24 of 2012) [2023] KEELC 18482 (KLR) (3 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18482 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 24 of 2012
EK Makori, J
July 3, 2023
Between
Mutaha Ahmed Dahman
1st Plaintiff
Alamin Ahmed Dahman (Suing As Administrators Of The Estate Of Maliam Bin Said)
2nd Plaintiff
and
Athman Sudi
Defendant
Ruling
1. The Application dated May 5, 2023 has not elicited any response despite several adjournments.
2. By the Ruling of Olola J dated October 8, 2019, the judge gave a conditional stay in this matter pending appeal to the Court of Appeal in this manner:“Accordingly, the order which commends itself to me and which I hereby grant is that there will be stay of execution pending the hearing of the Appeal on condition that the Defendant deposits a sum of Kshs 100,000/- within 30 days from the date of this Ruling. In default, this application shall be deemed to have been dismissed with costs to the Respondents. Otherwise, the costs of this application shall be in the Appeal.”
3. It will seem the conditions set by Olola J have not been achieved hitherto hence the application dated May 5, 2023, seeking to have the temporary stay orders vacated.
4. Since October 2, 2020, those conditions made by the learned judge have never been satisfied nor have any reasons for failure to do so been stated.
5. Counsel for the respondent seeks seven more days to look for her client or file an application to cease to act.
6. I see no need of adjourning further this matter for counsel to pull out of the record. The orders by Olola J were self-executory and took effect on November 8, 2020 when the respondent defaulted in depositing the sum of Kshs 100,000/- as ordered by the judge.
7. Hence, the application dated May 5, 2023 is hereby allowed with costs. The resultant effect is that the application dated October 24, 2019 stands dismissed with costs.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 3RD DAY OF JULY 2023EK MAKORIJUDGEIn the presence of:Mr Kimani for the ApplicantMs Oloo for the RespondentCourt Clerk; Happy