[2005] KECA 129 (KLR)
The Court of Appeal held that since the applicant failed to comply with the High Court's order to deposit KES 130,000 as a condition for stay, execution proceeded and titles were issued. As a result, there was nothing left for the Court to stay. The application for stay of execution was therefore dismissed as moot....
Source-derived case information.
- Citation
- [2005] KECA 129 (KLR)
- Parties
- Applicant: Kirop Kanda; Respondent: Gabriel Biwot Kanda; Respondent: Kiptoo Kand Kibor; Respondent: Benjamin Ruto Kanda; Respondent: Kilimo Kanda
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Application 194 of 2005
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Appeals Process, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kirop Kanda
Applicant
Gabriel Biwot Kanda
Respondent
Kiptoo Kand Kibor
Respondent
Benjamin Ruto Kanda
Respondent
Kilimo Kanda
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the Court of Appeal can grant a stay of execution where the decree has already been executed.
- 2 Whether the applicant is entitled to a stay of execution pending appeal after failing to comply with the High Court's conditional stay order.
Ratio Decidendi
The Court of Appeal held that since the applicant failed to comply with the High Court's order to deposit KES 130,000 as a condition for stay, execution proceeded and titles were issued. As a result, there was nothing left for the Court to stay. The application for stay of execution was therefore dismissed as moot. The costs of the application were ordered to be in the appeal.
Court Disposition
application dismissed
Orders
- The motion dated 12th July, 2005 and filed on the same day is dismissed.
- The costs of the dismissed motion shall be in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
CORAM: OMOLO, TUNOI & O’KUBASU, JJ.A.
CIVIL APPLICATION NAI 194 OF 2005BETWEEN
KIROP KANDA…………………………………………..……………….APPLICANT
AND 1. GABRIEL BIWOT KANDA
2. KIPTOO KAND KIBOR
3. BENJAMIN RUTO KANDA
4. KILIMO KANDA…………………………………………………RESPONDENTS
(Application for stay of execution pending the hearing and determination of the lodged and filed appeal from the judgment and decree of the High Court of Kenya at Kitale (Nambuye, J) dated 19th November, 2002
in
H.C.C.C. NO. 128 OF 1998) *********************************
RULING OF THE COURT
The judgment the applicant is appealing against was delivered on 19th November, 2002. Thereafter the applicant applied to the High Court for a stay of execution which the High Court granted on condition that he deposit Shs.130,000/= in court within seven days. The applicant failed to do so with the result that execution has taken place and titles issued. There is now nothing for us to stay as the decree has been executed. We accordingly decline to order any stay and the consequence of that is and must be that the motion dated 12th July, 2005 and filed in court on the same day be and is hereby dismissed. The costs of the dismissed motion shall be in the appeal.
DATED and DELIVERED at ELDORET this 23rd day of September, 2005. R.S.C. OMOLO……………………...JUDGE OF APPEAL
P.K. TUNOI………………………JUDGE OF APPEAL
E.O. O’KUBASU………………………JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR