[2018] KEHC 6417 (KLR)
The court held that the prayer for stay of execution pending determination of the application was spent upon delivery of the ruling, and thus could not be granted. Furthermore, the court noted the lack of clarity as to whether a proper appeal had been filed and paid for, which is a necessary condition for granting...
Source-derived case information.
- Citation
- [2018] KEHC 6417 (KLR)
- Parties
- Appellant: Daud Mathobe Hud; Respondent: Malia Taba Abdi
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 15 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Appeals Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daud Mathobe Hud
Appellant
Malia Taba Abdi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the judgment pending determination of the application.
- 2 Whether the application is properly before the court given the nature of the orders sought.
- 3 Whether a proper appeal has been filed and paid for.
Ratio Decidendi
The court held that the prayer for stay of execution pending determination of the application was spent upon delivery of the ruling, and thus could not be granted. Furthermore, the court noted the lack of clarity as to whether a proper appeal had been filed and paid for, which is a necessary condition for granting substantive orders in appellate proceedings. The court emphasized that it cannot grant substantive orders that have not been specifically sought in the application. The appropriate course for the applicant is to expedite the intended appeal and seek a hearing date on a priority basis. Consequently, the application was dismissed, and costs were ordered to follow the outcome of...
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- Costs of the application will follow the decision in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CIVIL APPEAL NO 15 OF 2018
DAUD MATHOBE HUD......................APPELLANT/APPLICANT
VS
MALIA TABA ABDI..................................................RESPONDENT
RULING
Before me is an application brought by way of Notice of Motion dated 2nd May 2018 filed by the applicant who described himself as appellant.The application was filed under section 1A,1B and 3A of the Civil Procedure Act(Cap 21) and Order 40 Rule 1,2 and 7 as well as Order 51 Rule 1 of the Civil Procedure Rules.
The main prayer is that pending the hearing and determination of theis application the court do stay the execution of the judgment delivered by Hon M S Hassan Principal Kadhi on 25th April 2018 in Garissa Kadhi’s Civil Case No 139 of 2018
The application has grounds on the face of the Notice of Motion and was filed with a supporting affidavit sworn by the applicant on 2nd May 2018.
The application was opposed through a replying affidavit sworn by the respondent on 9th May 2018.
At the hearing of the application both the applicant and the respondent made oral submissions in court.
This application will fail for the simple reason that the prayer for stay of execution of judgment sought is for the period pending the determination of the application. In effect on delivery of this ruling the prayer will have been spent and this court cannot grant substantive orders that have not been sought.
It is also not clear from the record whether a proper appeal was filed and paid for.In my view therefore the best option available to the applicant is to expedite his intended appeal and ask the court to grant him a hearing date on priority basis.
As for the application herein it is hereby dismissed.Costs of the application will follow the decision in the appeal.
Dated and delivered at Garissa this 5th June 2018.
George Dulu
JUDGE