[2009] KEHC 480 (KLR)
The court found that the subject matter of both appeals is the same parcel of land and involves the same parties, justifying consolidation for efficient hearing. Further, to ensure the appeals are not rendered nugatory and can be heard on their merits, the court extended the temporary stay of execution previously...
Source-derived case information.
- Citation
- [2009] KEHC 480 (KLR)
- Parties
- Appellant: Johana Chepkurui Kibiwot alias Johana A. Chepkurui; Respondent: Micah Cheboi Kibiwot
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 21 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Consolidation of Appeals
- Outcome
- Application for consolidation and stay of execution allowed.
- Legal Topics
- Stay of Execution, Consolidation of Appeals, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johana Chepkurui Kibiwot alias Johana A. Chepkurui
Appellant
Micah Cheboi Kibiwot
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Consolidation of Appeals
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decrees pending appeal.
- 2 Whether the two appeals should be consolidated for hearing.
Ratio Decidendi
The court found that the subject matter of both appeals is the same parcel of land and involves the same parties, justifying consolidation for efficient hearing. Further, to ensure the appeals are not rendered nugatory and can be heard on their merits, the court extended the temporary stay of execution previously granted. The court exercised its discretion under the Civil Procedure Rules and Act to both consolidate the appeals and grant a stay of execution pending their determination. Costs were ordered to abide the outcome of the appeals.
Court Disposition
Application for consolidation and stay of execution allowed.
Orders
- Appeal Nos. 21 of 2005 and 27 of 2007 are consolidated for hearing.
- The temporary stay of execution granted on 20th April 2007 is extended and shall subsist until the appeals are heard and determined.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 21 of 2005
JOHANA CHEPKURUI KIBIWOT
ALIAS JOHANA A. CHEPKURUI:…………APPELLANT
VERSUS
MICAH CHEBOI KIBIWOT:……………..RESPONDENT
RULING
The Appellant has filed a Notice of Motion under Order XLI Rule 4(1) of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act cap 21 of the Laws of Kenya praying for stay of execution of the judgment given on 17/11/2006 and decrees issued on 17/11/2006 and 1/12/2006 pending the hearing and determination of Civil appeal No.21 of 2005. He also prays for the consolidation of that Appeal with Appeal No.27 of 2007. He bases his application on the grounds that stay of execution was denied by the lower court for being sought prematurely. That if execution ensues the appeal will be rendered nugatory. The application is supported by the affidavit of the applicant.
The application was opposed on the grounds that no substantial loss was shown to be occasioned to the applicant if stay was not granted and secondly that the correct procedure in pursuing the right relief was not followed as the applicant had not appealed to the Provincial Appeals Board after losing at the land Disputes Tribunal.
The application seeks stay of execution of the elder’s Award which was adopted as a court’s judgment in RM.CC.NO.1344/2004 and for the consolidation of the two Appeals filed herein. The subject matter of the Appeals is the parcel of land known as Sambirir/Sambirir/69 and the parties in both Appeals are the same. That empowers this to court to consolidate the two Appeals for purposes of hearing. Appeal nos.21/2005 and 27/2007 are consequently ordered consolidated. And so that the appeals may be heard on their merit and further that they be not rendered nugatory the temporary stay granted herein on 20th April 2007 is hereby extended and shall subsist until the appeals filed herein are heard and determined. Costs shall abide in the appeals. Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 2ND DAY OF DECEMBER, 2009.
P.M.MWILU
JUDGE
IN THE PRESENCE OF
Mr. Kiboi holding brief for Chemitei for the Respondent
N/A for the Applicant
Court Clerk - Paul Ekitela.