[2006] KEHC 1481 (KLR)
The court held that since there was no formal application for leave to operate as a stay and no such order was ever granted, the applicants were not entitled to a stay of execution. The leave previously granted was only for filing the substantive application and did not include a stay. Furthermore, the applicants...
Source-derived case information.
- Citation
- [2006] KEHC 1481 (KLR)
- Parties
- Applicant: Kibirgen Arap Samoei; Applicant: Kiprotich Arap Ngeleche; Applicant: Jepleting Kobot; Applicant: Kipkerin Arap Tarus; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 187 of 1996
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Judicial Review
- Outcome
- application dismissed with costs
- Judges
- AI Tullu
- Legal Topics
- Judicial Review, Stay of Execution, Delay in Prosecution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kibirgen Arap Samoei
Applicant
Kiprotich Arap Ngeleche
Applicant
Jepleting Kobot
Applicant
Kipkerin Arap Tarus
Applicant
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Judicial Review
Legal Issues
- 1 Whether the court can grant a stay of execution where no formal application for leave to operate as stay was made.
- 2 Whether the delay of ten years in prosecuting the substantive application amounts to an abuse of court process.
Ratio Decidendi
The court held that since there was no formal application for leave to operate as a stay and no such order was ever granted, the applicants were not entitled to a stay of execution. The leave previously granted was only for filing the substantive application and did not include a stay. Furthermore, the applicants had failed to prosecute the substantive application for ten years, and the interested parties had not executed the decree during that period, effectively resulting in a de facto stay. The court found the delay inordinate and inexcusable, amounting to an abuse of the court process. Even if the court had the power to grant a stay at this stage, it would have declined to do so on...
Court Disposition
application dismissed with costs
Orders
- The application dated 31st May, 2006 is dismissed with costs to the interested parties.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Misc Appli 187 of 1996
KIBIRGEN ARAP SAMOEI
KIPROTICH ARAP NGELECHE
JEPLETING KOBOT
KIPKERIN ARAP TARUS................................................................................................APPLICANTS
VERSUS
ATTORNEY GENERAL.................................................................................................RESPONDENT
RULING
The Applicants filed this Notice of Motion on 14th June,1996 under the provisions of Order 53, Rule 3 and 4 of the Civil Procedure Rules after another application which they had filed earlier was struck out on 4th June, 1996. This was Eldoret H.C.Misc. Civil Application No. 5 of 1996 also for judicial review orders.
After Justice Nambuye struck out the earlier application she granted the Applicants leave to file a fresh application. This order was deemed to be the order of leave for the filing of the present application. There was no order that the leave operate as a stay of the decision being challenged herein, namely the Decree of the Kapsabet S.R.M.C. Land Disputes Tribunal case No.4 of 1995.
Exactly ten (10) years later the suit is still pending and the applicant’s have later filed an application dated 31st May, 2006 for inter alia, following orders:-
“1. .............................................
2. That there be a stay of execution of the decree of the Kapsabet
Senior Principal Magistrate court Land Dispute Tribunal
Case No. 49 pending the hearing and determination of this
application inter partes and thereafter pending the hearing
and determination of the main motion on judicial review.
3. .......................................
4. ........................................”
The application opposed. Order 53, Rule 1 (4) provides:-
“4. The grant of leave under this rule to apply for an
order of prohibition or an order of certiorari shall, if
the judge so directs, operate as stay of proceedings in
question until the determination of the application,
or what the judge orders otherwise.”
I have carefully perused and studied these provisions. My understanding and interpretation is that the question as to whether the grant of leave is to operate as stay ought be considered by the Judge at the time leave is being considered. It is perhaps arguable whether the judge can post-pone the hearing or determination of stay to a later stage or set it down for hearing inter-partes.
Be that as it may, the significant issue in the application before this court is that, strictly, no application for leave was ever made as required by orders 53 of the Civil Procedure Rules. The leave it appears was granted after the court dismissed an earlier application on some technicalities. The court must have exercised its inherent jurisdiction to grant leave. But there was no reference or order regarding stay.
In my view since there was no application for order of leave to operate as stay and no such order was ever granted, the matter is closed. A party is bound by his pleading. In this case there is no formal application for leave and stay.
This court would be failing in its duties if it does not make some observations regarding the timing of this application. The substantive application was filed on 14th June,1996 which is exactly ten (10) years ago. It has not been prosecuted. The record shows that the Applicants are not genuine and committed in prosecuting this application.
The interested parties did not execute the Decree which is the subject matter of the application. This amounted to a “stay” for ten (10) years by default. What kind of stay did the Applicant need? One for twenty(20) years or a century? I hold that the application herein amounts to an abuse of the process of the court due to the inexcusable and inordinate delay in prosecuting it. Even if this court had powers to grant stay at this stage, I would have rejected it on this ground.
I do hereby dismiss this application dated 31st May,2006 with costs to the interested parties.
M.K. IBRAHIM
JUDGE
2/08/2006
Coram – Ibrahim ‘J’
C/C - Chelang’a
Mr. Keter for the interested parties.
No Appearance for the Applicants.
Ruling read in their presence.
M.K. IBRAHIM
JUDGE