[2018] KEHC 2266 (KLR)
The court found that although leave to appeal out of time had been granted, the applicants failed to comply with the court's order to file the appeal in the Court of Appeal within 21 days. The Notice of Appeal was filed before the Deputy Registrar of the High Court, not the Court of Appeal, and there was no evidence...
Source-derived case information.
- Citation
- [2018] KEHC 2266 (KLR)
- Parties
- Applicant: Fatuma Awab Mohamed; Applicant: Zainab Mohamed Haji; Applicant: Ali Mohamed Haji; Applicant: Abdikadir Mohamed Haji; Applicant: Abdirazak Hassan Mohamed; Applicant: Deka Abdullahi Dabar; Respondent: Asha Abdullahi; Respondent: Nur Abdullahi; Respondent: Khadija Mohamed Ali; Respondent: Mohamed Abdullahi
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Appellate Jurisdiction, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Awab Mohamed
Applicant
Zainab Mohamed Haji
Applicant
Ali Mohamed Haji
Applicant
Abdikadir Mohamed Haji
Applicant
Abdirazak Hassan Mohamed
Applicant
Deka Abdullahi Dabar
Applicant
Asha Abdullahi
Respondent
Nur Abdullahi
Respondent
Khadija Mohamed Ali
Respondent
Mohamed Abdullahi
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment pending appeal to the Court of Appeal.
- 2 Whether the applicants complied with the court's order granting leave to appeal out of time.
Ratio Decidendi
The court found that although leave to appeal out of time had been granted, the applicants failed to comply with the court's order to file the appeal in the Court of Appeal within 21 days. The Notice of Appeal was filed before the Deputy Registrar of the High Court, not the Court of Appeal, and there was no evidence that an appeal had been properly filed. As a result, there was no valid appeal pending before the Court of Appeal, and the application for stay of execution was not merited. The court dismissed the application for stay of execution on the basis that the precondition of a pending appeal had not been satisfied.
Court Disposition
application dismissed
Orders
- The application for stay of execution of the court's judgment is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
FAMILY CIVIL APPEAL NO. 4 OF 2016
FATUMA AWAB MOHAMED......................................1ST APPLICANT
ZAINAB MOHAMED HAJI........................................2ND APPLICANT
ALI MOHAMED HAJI..................................................3RD APPLICANT
ABDIKADIR MOHAMED HAJI.................................4TH APPLICANT
ABDIRAZAK HASSAN MOHAMED..........................5TH APPLICANT
DEKA ABDULLAHI DABAR.......................................6TH APPLICANT
VERSUS
ASHA ABDULLAHI...................................................1ST RESPONDENT
NUR ABDULLAHI.....................................................2ND RESPONDENT
KHADIJA MOHAMED ALI.....................................3RD RESPONDENT
MOHAMED ABDULLAHI.......................................4TH RESPONDENT
RULING
1. Before me is a Notice of Motion brought under section 1A, 1B, 3A, 78 and 79 of the Civil Procedure Rules and Order 42 rule 6 of the Civil Procedure Rules, and section 50 (2) of the Law of Succession Act Cap. 160 as well as rule 74 of the Court of Appeal Rules under the Appellate Jurisdiction Act.
2. The application was filed under certificate of urgency and sought for leave to appeal out of time and stay of execution of judgment in Garissa High Court Civil Appeal No. 4 of 2016.
3. This court on 31st July 2018 granted leave to file appeal out of time to the Court of Appeal within 21 days.
4. The request for stay of execution of judgment was by consent agreed to be pursued though written submissions. The applicants’ counsel filed written submissions on 22nd October 2018. The respondents’ counsel does not appear to have filed written submissions to the application.
5. I have considered the application and the written submissions filed in this court. The appeal herein is not an appeal to this court but an appeal to the Court of Appeal. In this regard, I note that from 31st July 2018 when leave to appeal was granted, an appeal should have been filed to the Court of Appeal within 21 days by 20th August 2018. However, the Notice of Appeal dated 5th July 2018 was filed before the Deputy Registrar of this court on 8th August 2018. In my view therefore, there was no compliance with this court’s order of filing the appeal in the Court of Appeal, and to-date, I do not know whether an appeal has been filed in the Court of Appeal.
6. In those circumstances, I find that the application herein for stay of execution of judgment of this court pending hearing of the appeal in the Court of Appeal is not merited as no appeal exists, and I thus have to dismiss the same.
7. Consequently, I dismiss the application for stay of execution of this court’s judgment.
Dated and delivered at Garissa this 20th Day of November 2018.
.......................
George Dulu
JUDGE