[2024] KEHC 16020 (KLR)
The court found that a stay of execution was not warranted because the suit in the lower court was dismissed with costs, no costs had been assessed, and no execution process had begun. Therefore, there was nothing to stay. However, the court exercised its discretion to grant the applicants leave to file an appeal...
Source-derived case information.
- Citation
- [2024] KEHC 16020 (KLR)
- Parties
- Appellant: David Ebitonyi Kwanzwi; Appellant: Martin Nyongesa Wasike; Respondent: David Bwoyi; Respondent: Benard Wasike; Respondent: Robert Wangila; Respondent: Benson Wafula; Respondent: Thomas Wafula; Respondent: Christine Bwoyi; Respondent: Jostine Malaba; Respondent: Damaris Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E139 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application for stay of execution dismissed; leave to appeal out of time granted.
- Judges
- REA Ougo
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ebitonyi Kwanzwi
Appellant
Martin Nyongesa Wasike
Appellant
David Bwoyi
Respondent
Benard Wasike
Respondent
Robert Wangila
Respondent
Benson Wafula
Respondent
Thomas Wafula
Respondent
Christine Bwoyi
Respondent
Jostine Malaba
Respondent
Damaris Wafula
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether a stay of execution can be granted where the suit was dismissed with costs and no execution process has commenced.
- 2 Whether the applicants should be granted leave to file an appeal out of time.
Ratio Decidendi
The court found that a stay of execution was not warranted because the suit in the lower court was dismissed with costs, no costs had been assessed, and no execution process had begun. Therefore, there was nothing to stay. However, the court exercised its discretion to grant the applicants leave to file an appeal out of time, noting their expressed desire to appeal and the interests of justice. The court directed that the current appeal file be closed and a proper appeal file be opened once the applicants file their appeal within 14 days from the date of the ruling. Costs were ordered to abide by the outcome of the appeal.
Court Disposition
Application for stay of execution dismissed; leave to appeal out of time granted.
Orders
- Application for stay of execution is dismissed.
- Applicants are granted leave to file an appeal out of time within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
36 paragraphs
Kwanzwi & another v Bwoyi & 7 others (Civil Appeal E139 of 2024) [2024] KEHC 16020 (KLR) (12 November 2024) (Ruling)
Neutral citation: [2024] KEHC 16020 (KLR)
Republic of Kenya
In the High Court at Bungoma
Civil Appeal E139 of 2024
REA Ougo, J
November 12, 2024
Between
David Ebitonyi Kwanzwi
1st Appellant
Martin Nyongesa Wasike
2nd Appellant
and
David Bwoyi
1st Respondent
Benard Wasike
2nd Respondent
Robert Wangila
3rd Respondent
Benson Wafula
4th Respondent
Thomas Wafula
5th Respondent
Christine Bwoyi
6th Respondent
Jostine Malaba
7th Respondent
Damaris Wafula
8th Respondent
Ruling
1. In a Motion dated 23. 9.2024 the Appellants/ Applicants ( hereinafter the applicants they seek the following orders;i.Spentii.There be a stay of execution of the Judgment, Decree, and all consequential orders issued on 24th July 2024 by the trial magistrate in Webuye Civil case No. 068 of 2019 pending the hearing of this application interpartes.iii.There be a stay of execution of the judgment, decree and all consequential orders issued on 24th July 2024 by the trial magistrate in Webuye Civil Case No E068 of 2019 pending the hearing of the intended appeal herein.iv.The Applicant be granted leave to file an appeal out of time.v.The draft memorandum of appeal filed herewith be deemed to have been duly filed.vi.Costs of the application be provided for.
2. The application is supported by the applicants' affidavit . The application was opposed. I have considered the said affidavits and the oral submissions by the parties.
3. I agree with the respondents' Counsel submission that the decree by the trial court order is not capable of being stayed as the suit was dismissed with costs. Further no costs have been assessed by the respondent hence no execution process has begun. I find that the applicants have failed to persuade this court that the stay is warranted.
4. On the issue of filing the appeal out of time the applicants aver that they were not issued with the proceedings in good time and that had that been done they would file the appeal out of time. I agree with the submissions of the respondent's counsel that the applicants could have filed a memorandum of appeal as they waited for proceedings. The respondents have also attacked the memorandum of appeal is a general statement.
5. However, it is apparent that the applicants are desirous of pursuing an appeal against the decision of the lower court. I will exercise my discretion and grant the applicant’s leave to file an appeal out of time. This appeal, HCCA E139 of 2024, ought not to have been opened by the registry. The registry should have opened a Miscellaneous Application File. The file appeal shall be closed and a proper appeal file opened once the applicants file their appeal. The applicants shall file an appeal within 14 days from the date of this Ruling. Costs shall abide by the appeal.
DATED, SIGNED, AND DELIVERED AT BUNGOMA ON THIS 12TH DAY OF NOVEMBER 2024. R. E.OUGOJUDGEIn the presence of:David Ebitonyi KwanzwiMartin Nyongesa Wasike -ApplicantsMr. Athung’a For the RespondentsWilkister – C/A