[2018] KEHC 225 (KLR)
The court found that the applicants failed to provide evidence of a valid notice of appeal or a memorandum of appeal, as required for the grant of stay of execution. The notice of appeal on record was undated, unstamped, and unpaid for, rendering it invalid. Furthermore, the application for stay was brought three...
Source-derived case information.
- Citation
- [2018] KEHC 225 (KLR)
- Parties
- Applicant: Paul Lazarus Disi; Applicant: Morris Majoni Paul; Respondent: Francis Amaala Paul; Respondent: Margaret Khabaya Paul
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 309 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Stay of Execution, Appeals Process, Probate and Administration, Land Title Nullification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Lazarus Disi
Applicant
Morris Majoni Paul
Applicant
Francis Amaala Paul
Respondent
Margaret Khabaya Paul
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have met the conditions for grant of stay of execution pending appeal.
- 2 Whether there is a valid notice of appeal or appeal on record to warrant a stay of execution.
- 3 Whether the application for stay was brought without unreasonable delay.
Ratio Decidendi
The court found that the applicants failed to provide evidence of a valid notice of appeal or a memorandum of appeal, as required for the grant of stay of execution. The notice of appeal on record was undated, unstamped, and unpaid for, rendering it invalid. Furthermore, the application for stay was brought three months after the ruling, with no satisfactory explanation for the delay. The applicants did not meet the threshold for grant of stay of execution as set out in the Civil Procedure Rules and relevant case law. Consequently, the application was found to be unmerited and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 26th September, 2018 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 309 OF 2009
IN THE MATTER OF THE ESTATE OF THE LATE PAUL MMBANGO OPATI.................DECEASED
AND
PAUL LAZARUS DISI ...........................................................................1ST OBJECTOR/APPLICANT
MORRIS MAJONI PAUL......................................................................2ND OBJECTOR/APPLICANT
VERSUS
FRANCIS AMAALA PAUL............................................................1ST PETITIONER/RESPONDENT
MARGARET KHABAYA PAUL .................................................2ND PETITIONER /RESPONDENT
R U L I N G
1. The 1st petitioner/applicant has filed an application dated 26th September, 2018 seeking for orders:
1. That this honourable court be pleased to issue an order for stay of execution of the Ruling dated 13th day of June, 2018 by Hon. J. Njagi (Judge) and all other consequential orders pending hearing and determination of this application and the appeal against the ruling.
2. That status quo to be maintained on land parcels Butsotso/Indangalasia/6229,6230. 6231,6232,6233,6234 and 6235 be maintained pending the hearing and determination of the application and appeal.
3. The costs of the application be provided for.
2. The application is premised on the grounds that the applicant has filed an appeal against my ruling dated 13/6/2018 where I ordered that:-
1. That the Land Registrar–Kakamega County do nullify any or all titles issued in respect of land parcel Nos.BUTSOTSO/INDANGALASIA/6229,6230,6231,6232,6233,6234and 6235 respectively, being resultant from cancelled partition of land parcel No. BUTSOTSO/INDANGALASI/247.
2. That the original number BUTSOTSO/INDANGALASIA/247 be restored in the name of the deceased.
3. That land Registrar,Kakamega County and land Surveyor, Kakamega County do execute orders made by this Honourable Court on 12th day of March, 2015 by Honourable Lady Justice R. Sitati.
4. That each party to bear its own costs.
3. The applicants were acting in person while the respondents were represented by the firm of Nadwa & Co. Advocates.
4. The application was opposed by the respondents on the grounds that:-
(1) That the application is improperly on record.
(2) That the applicants have not met the condition for the granting of the orders sought.
(3) That the application lacks merit, is an afterthought and an abuse of the court process.
(4) That there is no appeal to warrant a stay of execution.
(5) That the application has been brought with unreasonable delay.
5. The application was supported by the affidavit of the 1st applicant Paul Lazarus Disi. The deponent states in his affidavit that he has filed an appeal with the court of Appeal at Kisumu. However no copy of a memorandum of appeal was annexed to the application. There is then no evidence that the applicants have filed an appeal with the court of Appeal.
6. The applicant says that he has filed a notice of appeal with this court. However the notice of appeal in the court file is not dated. Neither is it stamped by the court to indicate the date it was received by the court. There is no receipt attached to the notice to indicate that it was paid for. Even after the issue of non- payment was raised by the advocates for the respondent during the hearing of the application, the applicant did not produce evidence that the notice was paid for. The importance of the date a notice is filed is because the time for filing the appeal starts to run from the time the notice of appeal is filed. These discrepancies are clear proof that there is no valid notice of appeal in record.
7. The ruling the applicants want to appeal against was delivered on 13th June, 2018. Three months have since lapsed and there is no evidence of a notice of appeal and an appeal having been filed. The applicants have not convinced the court that they deserve the orders that they are seeking.
8. The end results is that the application dated 26th September, 2018 is unmerited. The same is dismissed with costs to the respondents.
Delivered, dated and signed in open court at Kakamega this 7th day of November, 2018.
J.NJAGI
JUDGE
In the presence of:
Objectors/applicants………….................................………absent
Tunoi holding brief Nadwa………….for petitioners /respondents
Petitioners/Respondents……….......................................…absent
Court Assistant …………………...............................……absent