[2014] KECA 172 (KLR)
The court held that since neither the applicant nor his advocate was present to prosecute the application for stay of execution, and in accordance with Rule 56(1) of the Court of Appeal Rules, the proper course was to dismiss the application. The court further noted that the respondents, having not opposed the...
Source-derived case information.
- Citation
- [2014] KECA 172 (KLR)
- Parties
- Applicant: Jameny Mudaki Asava; Respondent: Brown Oteng Asava; Respondent: Authur Mwanzi Asava
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 52 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed for non-attendance
- Judges
- DK Maraga, S ole Kantai
- Legal Topics
- Stay of Execution, Appellate Jurisdiction, Dismissal for Nonattendance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jameny Mudaki Asava
Applicant
Brown Oteng Asava
Respondent
Authur Mwanzi Asava
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution should be granted in the absence of the applicant or his advocate.
- 2 Whether the court should dismiss the application under Rule 56(1) of the Court of Appeal Rules due to non-attendance.
Ratio Decidendi
The court held that since neither the applicant nor his advocate was present to prosecute the application for stay of execution, and in accordance with Rule 56(1) of the Court of Appeal Rules, the proper course was to dismiss the application. The court further noted that the respondents, having not opposed the application, were not entitled to costs. The decision was based on procedural grounds rather than the merits of the application for stay.
Court Disposition
application dismissed for non-attendance
Orders
- The application for stay of execution is dismissed under Rule 56(1) of the Court of Appeal Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: MARAGA, AZANGALALA & KANTAI, JJ.A)
CIVIL APPLICATION NO. 52 OF 2014 (UR. 36/2014)
BETWEEN
JAMENY MUDAKI ASAVA ...................................................................APPLICANT
AND
BROWN OTENG ASAVA ....................................................... 1ST RESPONDENT
AUTHUR MWANZI ASAVA .................................................... 2ND RESPONDENT
(An application for stay of execution, from the Ruling of the High Court of Kenya at Kakamega (Chitembwe, J.) dated 26th February, 2014
in
KAKAMEGA SUCC. CAUSE NO. 278 OF 2007)
************************************
RULING OF THE COURT
The Motion by Notice drawn by M/s Athunga & Co Advocates for the Applicant, filed under a Certificate of Urgency, is stated to be brought under Rule 5 (2) (b) of this Courts Rules and Sections 3A and 3B of the Appellate Jurisdiction Act. It is supported by an affidavit of the Applicant sworn on 18th July, 2014 where various reasons are advanced for the prayers sought principally that we grant a stay of execution in Kakamega High Court Succession Cause No. 278 of 2007 pending hearing and determination of Civil Appeal No. 23 of 2014.
That application was called for hearing on 23rd October, 2014 butneither the applicant nor his advocate was present.
Hearing Notice was served upon the said Advocates on 10th September, 2014 as is evidenced by a stamp of the said firm on the Hearing Notice and further evidenced by the Affidavit of service sworn by Joseph Kiarie, a court process served, who depones that he served the said Notice on the said law firm on the said date.
Miss M. Bikeyo, the learned counsel for the respondent, appeared for the hearing of the Motion and staed that nothing had been filed in opposition to the application. However, in terms of Rule 56 (1) of the Rules of this Court, in the absence of the applicant and his advocate where the application cannot be prosecuted the proper course to take is to dismiss the application under the said Rule which we hereby proceed to do.
As the respondents did not oppose the application they are not entitled to costs.
DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF OCTOBER, 2014.
D. K. MARAGA
…................................
JUDGE OF APPEAL
F. AZANGALALA
......................................
JUDGE OF APPEAL
S. ole KANTAI
…................................
JUDGE OF APPEAL