[2018] KEELC 4845 (KLR)
The court found that it had already delivered its final judgment on 29/11/2016, rendering it functus officio. As such, it lacked jurisdiction to entertain the application for stay of execution or to grant any further orders in the matter. The court agreed with the respondent that the case was concluded and the...
Source-derived case information.
- Citation
- [2018] KEELC 4845 (KLR)
- Parties
- Plaintiff: Erasmas Sasaka Wachilonga; Defendant: Simon Wachilonga Toli; Defendant: Margaret K. Wachilonga; Defendant: Magdalene Mbayisi; Defendant: Everlyne Nekesa Wachilonga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 38 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Post Judgment
- Outcome
- application dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Functus Officio, Jurisdiction of Court, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Erasmas Sasaka Wachilonga
Plaintiff
Simon Wachilonga Toli
Defendant
Margaret K. Wachilonga
Defendant
Magdalene Mbayisi
Defendant
Everlyne Nekesa Wachilonga
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Post Judgment
Legal Issues
- 1 Whether the court has jurisdiction to grant a stay of execution after judgment has been delivered and the matter concluded.
- 2 Whether the court is functus officio and thus unable to entertain the present application for stay of execution.
Ratio Decidendi
The court found that it had already delivered its final judgment on 29/11/2016, rendering it functus officio. As such, it lacked jurisdiction to entertain the application for stay of execution or to grant any further orders in the matter. The court agreed with the respondent that the case was concluded and the statutory provisions relied upon by the applicant were inapplicable. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ELC. CASE NO. 38 OF 2014.
ERASMAS SASAKA WACHILONGA..............................PLAINTIFF
VERSUS.
SIMON WACHILONGA TOLI.................................1ST DEFENDANT
MARGARET K. WACHILONGA.............................2ND DEFENDANT
MAGDALENE MBAYISI..........................................3RD DEFENDANT
EVERLYNE NEKESA WACHILONGA...................4TH DEFENDANT
RULING.
[1]. This application is made under rule 2(2) (a) & 3(2) of the high court practice and procedure Rules and Sec 13(7) (a) of the Environment and Land Act and Sec. 3A of the Civil Procedure Act. The applicant prays that this court restrains the plaintiff and Auctioneer from carrying out the execution of the order issued by the Deputy Registrar on 5th day of July 2017 and that the court do order a stay of execution of the Judgment delivered on 29/11/2017 pending the outcome of summons to revoke the grant dated 13/3/2017.
[2]. The respondent opposes this application and claims that the court is functus official further that the court has no jurisdiction to grant the order sought in the application. That this case is concluded and that the provisions invoked by the applicant are wrong.
[3]. I agree with the sentiments of the defendant. The Judgment herein was handed down on 29/11/2016. This court is functus official and cannot entertain the application filed. The same is dismissed with costs.
Judgment read in Open Court in the presence of Mr. Kweyu.
Dated at Bungoma this 10th day of January, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Chemutai - Court Assistant
Mr. Kweyu for Plaintiff
Wesutsa & Co. for the Defendant