[2021] KEELC 996 (KLR)
The court found that the application for stay of execution was incompetent because the applicant failed to provide the judgment and decree sought to be stayed. Without these essential documents, the court could not assess the merits of the application or determine whether substantial loss would occur if the stay was...
Source-derived case information.
- Citation
- [2021] KEELC 996 (KLR)
- Parties
- Appellant: Fred Waswala; Respondent: Everlyne Nasimiyu Ejilo; Respondent: Fred Wanyonyi Muchanga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 4 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Application struck out as incompetent.
- Legal Topics
- Stay of Execution, Appeal Procedure, Requirements for Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Waswala
Appellant
Everlyne Nasimiyu Ejilo
Respondent
Fred Wanyonyi Muchanga
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court can grant a stay of execution without being provided with the judgment and decree sought to be stayed.
- 2 Whether the application for stay of execution is competent in the absence of essential documents.
Ratio Decidendi
The court found that the application for stay of execution was incompetent because the applicant failed to provide the judgment and decree sought to be stayed. Without these essential documents, the court could not assess the merits of the application or determine whether substantial loss would occur if the stay was not granted. The absence of these documents deprived the court of the necessary information to exercise its discretion judiciously. Consequently, the application was struck out, but the applicant was granted liberty to file a fresh application with the requisite documents attached.
Court Disposition
Application struck out as incompetent.
Orders
- The Notice of Motion dated 14th September 2021 and filed herein on 28th September 2021 is struck out.
- The applicant is at liberty to file a fresh application taking into account the court's observations.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT BUNGOMA
ELC APPEAL NO. 4 OF 2021
FRED WASWALA............................................................................................APPELLANT
VERSUS
EVERLYNE NASIMIYU EJILO.........................................................1ST RESPONDENT
FRED WANYONYI MUCHANGA.....................................................2ND RESPONDENT
28/10/2021
Coram: Hon. B. N. Olao JUDGE
In Chambers
O R D E R
I have considered the Notice of Motion dated 14th September 2021 and filed under Certificate of Urgency. It seeks a stay of execution of the Judgment and Decree issued in BUNGOMA CMCC No 200 of 2015.
Without the Judgment and Decree sought to be stayed, I am unable to exercise my discretion in the matter. I appreciate that the typing of the Judgment may take a while bearing in mind that the same was delivered on 11th August 2021. However, it should not be difficult to get certified copies of the hand written Judgment for purposes of this application. As for the decree, I believe that can be obtained in a day at most. All I have is the bill of costs and it is clear from the application that the Applicant seeks a stay of Judgment and Decree issued in BUNGOMA CMCC No 200 of 2015 pending the hearing of the appeal herein.
The bottom line is that this Court has not been provided with efficient information to enable me consider the merits or otherwise of the Notice of Motion dated 14th September 2021 and filed herein on 28th September 2021. How, for instance, will this Court determine the issue of substantial loss, which is the cornerstone of such applications, unless I am provided with all the relevant information with regard to the application sought to be stayed?
In the circumstances, the Notice of Motion dated 14th September 2021 and filed herein on 28th September 2021 is incompetent. It is hereby struck out. The Applicant is at liberty to file a fresh application taking into account the above observations.
Boaz N. Olao.
J U D G E
28th October 2021.