[2021] KEHC 3785 (KLR)
The court held that stay of execution under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules cannot be granted where no appeal has been filed. Since the applicant had not filed an appeal against the judgment of the Thika Chief Magistrate's Court, the application for stay of execution could not be entertained....
Source-derived case information.
- Citation
- [2021] KEHC 3785 (KLR)
- Parties
- Applicant: Francis Kinyanjui Mwangi; Respondent: Sarafina Wanjiru Ikahu
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 214 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution not granted; determination held in abeyance.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Eviction Orders, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kinyanjui Mwangi
Applicant
Sarafina Wanjiru Ikahu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the eviction order pending the hearing and determination of an intended appeal.
- 2 Whether stay of execution can be granted where no appeal has yet been filed.
- 3 Whether the court should hold the application for stay in abeyance pending determination of the application for leave to appeal out of time.
Ratio Decidendi
The court held that stay of execution under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules cannot be granted where no appeal has been filed. Since the applicant had not filed an appeal against the judgment of the Thika Chief Magistrate's Court, the application for stay of execution could not be entertained. However, the court acknowledged that the applicant had filed a separate application for leave to appeal out of time, and indicated that if such leave is granted, a stay of execution may be considered in the interests of justice. Accordingly, the court declined to extend the stay of execution previously granted and held the determination of the current application in abeyance...
Court Disposition
Application for stay of execution not granted; determination held in abeyance.
Orders
- Stay of execution previously granted to the applicant will not be extended unless there is an appeal on record.
- Final determination of the Notice of Motion dated 27th August, 2021 is held in abeyance.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
MISC. CIVIL APPLICATION NO. 214 OF 2020
BETWEEN
FRANCIS KINYANJUI MWANGI.................................................................APPLICANT
VERSUS
SARAFINA WANJIRU IKAHU...................................................................DEFENDANT
RULING
1. Judgment was entered on 30th April, 2020 before the Thika chief Magistrate’s Court in Civil Case No. 966 of 2013 against FRANCIS KINYANJUI MWANGI (Francis). By that judgment, SARAFINA WANJIRU IKAHU (Sarafina) succeeded in her claim for the property RUIRU/KIU BLOCK 12/329. In the execution of that judgment, Sarafina sought and obtained orders for the eviction of Francis from that property.
2. Francis has not filed an appeal against that judgment. Francis on a separate file, has sought leave to admit his appeal out of the time period prescribed under Section 799 of the Civil Procedure Act Cap. 21. That 799 of Cap. 21 provides:-
“79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
3. By the Notice of Motion application dated 27th August, 2021, in this matter, Francis seeks stay of his eviction from the afore stated property by the lower court. Stay of execution under Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules is granted pending the hearing and determination of an appeal. Francis has not filed an appeal against the Thika Chief Magistrate’s case. Stay of execution under Order 42 Rule 6 (1) and (2) cannot, in those circumstances be granted to Francis. It is for the above reason that I decline to entertain the application for stay of execution as sought by Francis. I am aware that there is an application for the appeal to be admitted out of time filed by Francis, in a separate file, which comes for consideration before this court today. In the event the leave sought is granted, stay of execution will be granted for the interest of justice would best be served by staying eviction of Francis who has occupied the property since 1991.
4. The order I make today is that stay of execution previously granted to Francis will not be extended unless there is an appeal on record. Therefore, the final determination of the Notice of Motion dated 27th August, 2021 is hereby held in abeyance.
RULING DATED AND DELIVERED AT KIAMBU THIS 22ND DAY OF SEPTEMBER, 2021
MARY KASANGO
JUDGE
Coram:
Court Assistant : Ndege
Francis Kinyanjui Mwangi (Applicant in person) :- Present
For Sarafina Wanjiru/Kahu :- Miss Mwangi
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE