[2008] KEHC 212 (KLR)
The court found that the applicant failed to substantiate the claim that the appeal was arguable and did not explain the nearly two-year delay in filing the application for stay of execution. The absence of steps to obtain certified copies of the ruling and proceedings, as required by the Court of Appeal Rules,...
Source-derived case information.
- Citation
- [2008] KEHC 212 (KLR)
- Parties
- Applicant: Joseph Ndungu Mbugua; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 855 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- KH Rawal
- Legal Topics
- Stay of Execution, Delay in Filing, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ndungu Mbugua
Applicant
__MISSING__
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for stay of execution of the court's orders pending appeal.
- 2 Whether the delay of almost two years in filing the application for stay has been adequately explained.
Ratio Decidendi
The court found that the applicant failed to substantiate the claim that the appeal was arguable and did not explain the nearly two-year delay in filing the application for stay of execution. The absence of steps to obtain certified copies of the ruling and proceedings, as required by the Court of Appeal Rules, further undermined the applicant's case. The court held that unexplained delay is fatal to such applications and agreed with the respondent that the application was not made in good faith. Consequently, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 12th February, 2008 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Succession Cause 855 of 1995
IN THE MATTER OF THE ESTATE OF GEORGE MBUGUA NGARE – DECEASED
RULING
After this court made its Ruling on 24th February, 2006, the Applicant Joseph Ndungu Mbugua filed the Notice of Motion dated 12th February, 2008 seeking orders to stay execution of the orders made in the said Ruling.
It is supported by grounds set forth on the face of the application and affidavit of the Applicant sworn on 12th February, 2008.
The grounds set forth in the application and the affidavit, in short, are that the Appeal is an arguable appeal as demonstrated in Memorandum of Appeal, which has four grounds. The affidavit also annexed Ruling and Notice of Appeal dated 6th March, 2006 filed on the same date.
The Learned Counsel appearing for the Applicant simply relied on the application and the affidavit without substantiating the averments that the appeal is an arguable appeal as well as the prejudice faced to be faced or by the Applicant. It is also averred by the Respondent that after the Notice of Appeal was filed no further steps are taken so as to obtain the certified copies of Ruling and proceedings as required in accordance with the promise of Rule 81(1) of the Court of Appeal Rules is filed. Moreover, I do notice from the record that the proceedings are typed.
The crucial issue of the long delay in filing the application (almost two years) has not at all been addressed. It is now trite law that delay in filing any application shall be sufficiently explained.
Considering the circumstances of this application, I tend to agree with the submissions and averments made on behalf of the Respondent that the Application is not made in good faith and should be dismissed.
I thus order that the Notice of Motion dated 12th February, 2008 is dismissed with costs to the Respondent.
Dated and signed at Nairobi this 18th November, 2008.
K.H. RAWAL
JUDGE
18. 11. 08