[2014] KEHC 7362 (KLR)
The court found that the applicant, Lydia Mwikali Joseph, was not a party to the original proceedings in the lower court (Makindu PMCC No. 336/2010), as her name did not feature in those proceedings. The court held that, in law, she had no right to appear or be heard before the High Court in this matter....
Source-derived case information.
- Citation
- [2014] KEHC 7362 (KLR)
- Parties
- Appellant: Lydia Mwikali Joseph; Respondent: Maitha Muthoka
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 245 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Stay of Execution, Locus Standi, Appeals Process, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Mwikali Joseph
Appellant
Maitha Muthoka
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has locus standi to file an appeal in a matter where she was not a party.
- 2 Whether the applicant is entitled to a stay of execution pending appeal.
Ratio Decidendi
The court found that the applicant, Lydia Mwikali Joseph, was not a party to the original proceedings in the lower court (Makindu PMCC No. 336/2010), as her name did not feature in those proceedings. The court held that, in law, she had no right to appear or be heard before the High Court in this matter. Consequently, the applicant lacked locus standi to file the appeal or seek a stay of execution. The application for stay of execution was therefore dismissed on this basis.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
No.181/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 245 OF 2013
LYDIA MWIKALI JOSEPH............................................APPELLANT
VERSUS
MAITHA MUTHOKA .................................................RESPONDENT
RULING
By an application dated 18th December 2013brought pursuant toOrder 42 Rule 6(1) (2), Order, 51 Rule 1of the Civil Procedure Rules, Section 3Aof theCivil Procedure Act, the applicant seeks stay of execution of a judgment in PMCC 336 of 2010 delivered on 12th November, 2013 pending hearing and determination of the Appeal No. 245 of 2013.
The application is based on grounds that; the applicant has already lodged an appeal against the judgment; the applicant was given 90 days to vacate the suit property with effect from 12th November, 2013; the application has been filed without undue delay; if evicted the applicant will suffer substantial loss and the appeal shall be rendered nugatory if orders sought are not granted.
The application is supported by an affidavit deposed by Lydia Mwikali Joseph, the applicant herein who avers that she was dissatisfied with the judgment of the Lower Court which prompted her to file an Appeal Number 245 of 2013. She stated that she was allocated Plot No. 273 Kiboko, paid for it and took possession of the same. She has constructed a house thereon and stands to suffer irreparable loss if evicted from the parcel of land. Further, that the appeal has an overwhelming chance of success as the magistrate lacked jurisdiction to determine the matter.
I have considered the application. I have also perused proceedings of the Lower Court. Proceedings in the Lower Court, Makindu PMCC No. 336/2010 were between Maitha Muthoka and Mary Mwikali Joseph. According to proceedings in the Lower Court, the person who testified as the defendant called herself Dider Mwikali Muthini. These proceedings were certified and availed by the applicant. I have also perused annexture “LMJ”, a letter of offer in respect of Plot No. 273 the basis upon which the applicant claims ownership of the land. It was issued to one Lydia Mwikali Muinde.
The question to be answered is whether the applicant has locus standi to file an appeal in a matter in which she was not a party? Her name having not featured in the Lower Court as a party, in law she had no right to appear and he heard before the High Court.
In the premises, the application is dismissed. No orders as to costs.
DATED, DELIVERED and SIGNEDthis 28THday of JANUARY, 2014.
L.N. MUTENDE
JUDGE