[2019] KEELC 5032 (KLR)
The court found that the applicant failed to file a notice of appeal within the prescribed time and that the application for leave to file an appeal out of time was dismissed by the Court of Appeal. As a result, there is no valid appeal pending before the appellate court. Granting a stay of execution in these...
Source-derived case information.
- Citation
- [2019] KEELC 5032 (KLR)
- Parties
- Appellant: Jacob Muriungi Murea; Respondent: Salome Njoki Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 82 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Appeals Process, Timeliness of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jacob Muriungi Murea
Appellant
Salome Njoki Njuguna
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted when no valid appeal is pending.
- 2 Whether the dismissal of an application for leave to appeal out of time renders a stay application nugatory.
Ratio Decidendi
The court found that the applicant failed to file a notice of appeal within the prescribed time and that the application for leave to file an appeal out of time was dismissed by the Court of Appeal. As a result, there is no valid appeal pending before the appellate court. Granting a stay of execution in these circumstances would be futile and amount to issuing orders in vain. The court therefore dismissed the application for stay of execution with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's notice of motion dated 25th July 2018 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT & LAND COURT
CIVIL APPEAL NO.82 OF 2015
JACOB MURIUNGI MUREA………………………………………APPELLANT
=VERSUS=
SALOME NJOKI NJUGUNA……………………………………..RESPONDENT
RULING
1. The Respondent /Applicant herein filed a notice of motion dated 25th July 2018 in which she sought stay of execution of the judgement of this court delivered on 28th June 2018. The applicant contends that if stay is not granted, the intended appeal will be rendered nugatory.
2. The applicant’s application was opposed by the appellant / respondent based on grounds of opposition dated 7th January 2019 and filed in Court on 10th January 2019 as well as a replying affidavit sworn on 6th November 2018. The respondent contends that the applicant is asking the court to give orders in vain in view of the ruling of Justice Kiage JA which dismissed the applicant’s application seeking leave to file an appeal out of time.
3. I have considered the applicant’s application as well as the opposition to the same by the respondent. The purpose of applying for stay of execution pending appeal is to ensure that where the stay is deserved, the intended appeal is not rendered nugatory. In the instant case, the applicant never filed a notice of appeal in time. When the applicant moved to the Court of Appeal seeking leave to file a notice of appeal out of time, that application was dismissed by Justice Kiage JA in a ruling delivered on 20th December 2018. As, matters stand, there is no appeal which the applicant can prefer to the court of appeal. There is no indication that the applicant sought a reference in accordance with Rule 55 of the Court of Appeal Rules. It will therefore be in vain to grant stay when there is no appeal being preferred. I proceed to dismiss the applicant’s notice of motion dated 25th July 2018 with costs to the Respondent.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 28thday of March 2019.
E.O.OBAGA
JUDGE
In the presence of;-
M/s Nyareru for Mr. Mulanyi for Appellant/Applicant
Court Assistant: Hilda
E.O.OBAGA
JUDGE