[2015] KEELC 272 (KLR)
The court held that it lacked jurisdiction to grant leave to appeal out of time, as such power is vested exclusively in the Court of Appeal under the relevant rules. Furthermore, since the plaintiff's suit had been dismissed and no positive order was made in his favour, there was no order capable of execution; thus,...
Source-derived case information.
- Citation
- [2015] KEELC 272 (KLR)
- Parties
- Applicant: Kahindi Kambi Mbitha; Respondent: Pola Charo Kaniki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 23 of 2013
- Procedural Posture
- Civil Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Injunctions, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kahindi Kambi Mbitha
Applicant
Pola Charo Kaniki
Respondent
Procedural Posture
Civil Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to grant leave to appeal to the Court of Appeal out of time.
- 2 Whether the court can grant a stay of execution or status quo after dismissing the suit where no executable order exists.
- 3 Whether the applicant is entitled to an injunction or order of status quo pending appeal.
Ratio Decidendi
The court held that it lacked jurisdiction to grant leave to appeal out of time, as such power is vested exclusively in the Court of Appeal under the relevant rules. Furthermore, since the plaintiff's suit had been dismissed and no positive order was made in his favour, there was no order capable of execution; thus, the court could not grant a stay of execution or maintain the status quo. Any application for an injunction or status quo pending appeal should be made to the Court of Appeal, not the trial court, especially where no appeal has yet been filed. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 18th December 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 23 OF 2013 (OS)
KAHINDI KAMBI MBITHA......................................................................PLAINTIFF/APPLICANT
=VERSUS=
POLA CHARO KANIKI..................................................................DEFENDANT/RESPONDENT
R U L I N G
On 28th November 2014, I dismissed the Plaintiff's suit with costs.
The Plaintiff has now filed an application dated 18th December 2014 in which he is seeking for leave to Appeal out of time and stay of execution of the Judgment and for the status quo to be maintained.
The Application is premised on the ground that the Applicant has a meritorious Appeal with high chances of success and that if the stay of the execution is not granted, the Appeal will be rendered nugatory.
In her response, the Plaintiff deponed that the Defendant is seeking for a blanket injunction to stop her from enjoying her rights as the absolute owner of Kilifi/Mtondia/1893.
I have considered the brief submissions on record.
Having delivered its judgment, this court has no jurisdiction to grant to the Applicant leave to file an Appeal in the Court of Appeal out of time. Such leave can only be granted by the Court of Appeal pursuant to the provisions of the Court of Appeal Rules.
This court dismissed the Plaintiff's suit. In the suit, the Plaintiff sought for an order to sub divide the suit property into two portions, and one of the two portions to be registered in his favour.
Having dismissed the suit, there is no order capable of execution. Consequently, this court cannot stay that that cannot be executed. Staying the Judgment will be an act in futility.
If the Applicant's intention is to obtain an order of injunction pending the filing and prosecution of the Appeal, then he should move the Court of Appeal for such an order and not this court. This court cannot grant an order of status quo or injunction more so where an appeal has not even been filed.
For those reasons, I dismiss the Application dated 18th December 2014 with costs.
Dated and delivered in Malindi this 11th day of September 2015.
O. A. Angote
Judge