[2017] KEELC 2823 (KLR)
The court found that the defendants were duly served with the hearing notice as evidenced by the affidavit of service on the court record. The applicant's own grounds admitted that execution had already taken place. The court held that it cannot stay execution that has already occurred, and that the application to...
Source-derived case information.
- Citation
- [2017] KEELC 2823 (KLR)
- Parties
- Plaintiff: Florence Nafula Wafula; Defendant: Evans Chetambe Wafula; Defendant: Wilson Walubengo Wafula
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 93 of 2014
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Ex Parte Judgment, Service of Process, Stay of Execution, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Nafula Wafula
Plaintiff
Evans Chetambe Wafula
Defendant
Wilson Walubengo Wafula
Defendant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Ex Parte Judgment and Stay Execution
Legal Issues
- 1 Whether the defendants were duly served with the hearing notice before the ex parte judgment was entered.
- 2 Whether the court should set aside, review, or discharge the ex parte judgment and stay execution.
- 3 Whether execution can be stayed after it has already taken place.
Ratio Decidendi
The court found that the defendants were duly served with the hearing notice as evidenced by the affidavit of service on the court record. The applicant's own grounds admitted that execution had already taken place. The court held that it cannot stay execution that has already occurred, and that the application to set aside, review, or discharge the ex parte judgment was without merit. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 15th December is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
LAND AND ENVIRONMENT CASE NO. 93 OF 2014.
FLORENCE NAFULA WAFULA…………….....……......…PLAINTIFF
VERSUS
EVANS CHETAMBE WAFULA…………………….1ST DEFENDANT
WILSON WALUBENGO WAFULA…………….…2ND DEFENDANT
RULING
[1]. The applicant by a Notice of Motion dated 15th December prays for a stay of execution of the decree herein and all other consequential orders and that the exparte Judgment made on 12th November 2015 be set aside, reviewed and or be discharged unconditionally.
[2]. The application is premised on the grounds that the case was heard in the absence of the defendants and that the defendants were never served with a hearing Notice. That the Auctioneer did not serve a proclamation notice before attaching the defendants animals.
[3]. The application was opposed. The respondent argued that the defendants were duly served with a hearing notice on 6/7/2015 and they did not attend the Court. It was argued that the defendant were duly served with a hearing notice on 6/7/2015 and decided not to attend the court. That Supporting Affidavit is filed and it is in the court file. It was argued for the respondent that the applicant’s affidavit is full of falsehoods since the applicant was served with the pleadings and he filed a defence. That in any case, the execution has taken place and so there is nothing to stay.
[4]. This application is clearly without merit. The applicant was duly served as evidenced by the affidavit filed in the court file. Execution has taken place, the applicants grounds supporting the application admit that execution has taken place. The court cannot stay what has already taken place. The application is clearly not merited. The same is dismissed with costs.
Judgment read in open Court.
DATEDat BUNGOMA this23rd day of May, 2017.
S. MUKUNYA
JUDGE.
In the presence of:
Joy/Gladys: Court Assistant
Parties are absent
They were served
R/S filed.