[2015] KEHC 4603 (KLR)
The court found that the application for stay was fatally defective due to its vagueness and lack of specificity. The applicant failed to indicate the particular children’s case or file number in which the ruling was made, and did not attach the relevant ruling to the supporting affidavit. Instead, an order dated...
Source-derived case information.
- Citation
- [2015] KEHC 4603 (KLR)
- Parties
- Appellant: I O M; Respondent: P D M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 37 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay Application
- Outcome
- application struck out
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Children Court Orders, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
I O M
Appellant
P D M
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application
Legal Issues
- 1 Whether the application for stay is competent in the absence of a specific case reference.
- 2 Whether the failure to attach the relevant ruling or order renders the application fatally defective.
- 3 Whether the application as framed is sufficiently clear to warrant the orders sought.
Ratio Decidendi
The court found that the application for stay was fatally defective due to its vagueness and lack of specificity. The applicant failed to indicate the particular children’s case or file number in which the ruling was made, and did not attach the relevant ruling to the supporting affidavit. Instead, an order dated 13th May 2014 was attached, which is not the same as the ruling sought to be stayed. The court emphasized that an order and a ruling are distinct, and what ought to be stayed is the order in the ruling, not the ruling itself. As a result, the court held that no proper orders could be granted on the basis of the application as framed and struck it out, awarding costs to the...
Court Disposition
application struck out
Orders
- The Motion dated 28th May 2014 is struck out.
- The respondent shall have the costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 37 OF 2014
I O M……………………....…………..APPELLANT
VERSUS
P D M …………………….…...……RESPONDENT
RULING
1. The Motion I am called upon to decide is dated 28th May 2014. It seeks stay of the ruling issued by the Children’s Court on 16th May 2014.
2. I note from the Motion that it is not indicated the particular children’s case where the offending ruling was made. The alleged case or court file number is not cited and therefore there is uncertainty as to the cause in which the ruling was delivered.
3. I have perused the memorandum of appeal dated 23rd May 2014. The same does not state with any amount of certainty the children’s cause in which the ruling of 13th May 2014 was delivered.
4. The application before me seeks stay of a ruling, yet a copy of the alleged ruling is not attached to the affidavit sworn in support of the application, what is attached instead is an order made on 13th May 2014. “Order”and “ruling” do not refer to the same thing. What ought to be stayed is the order in the ruling, not the ruling itself!
5. As framed, the Motion dated 28th May 2014 is vague and misconceived. No orders can properly be granted on its basis. Consequently, I do hereby strike the same out. The respondent shall have the costs of the application.
DATED, SIGNED and DELIVERED at NAIROBI this 29TH DAY OF MAY, 2015.
W. MUSYOKA
JUDGE
In the presence of …………………advocate for the appellant.
In the presence of ……….....…. advocate for the respondents.