[2013] KEHC 2516 (KLR)
The court found that the applicant had not filed a notice of appeal or otherwise commenced the procedure for instituting an appeal against the Resident Magistrate's order dated 27th February 2013. Although there was a previous High Court Civil Appeal No. 11 of 2013, it had been struck out and there was no evidence...
Source-derived case information.
- Citation
- [2013] KEHC 2516 (KLR)
- Parties
- Applicant: Mary Wanjira Njiru; Respondent: Julia Muthanje Njiru
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- ? 59 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- BN Olao
- Legal Topics
- Stay of Execution, Caution Removal, Appeals Process, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wanjira Njiru
Applicant
Julia Muthanje Njiru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the Resident Magistrate's order removing the caution on L.R GATURI/NEMBURE/9862 pending appeal.
- 2 Whether the applicant has complied with the procedural requirements for instituting an appeal, specifically the filing of a notice of appeal.
Ratio Decidendi
The court found that the applicant had not filed a notice of appeal or otherwise commenced the procedure for instituting an appeal against the Resident Magistrate's order dated 27th February 2013. Although there was a previous High Court Civil Appeal No. 11 of 2013, it had been struck out and there was no evidence of a subsequent appeal or notice of appeal. The law requires at least an intention to appeal, manifested by a notice of appeal, before a stay of execution can be granted under Order 42 Rule 6. In the absence of such a notice, the applicant was not entitled to the orders sought. The court therefore dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 30th April 2013 is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC MISC APPLICATION NO. 59 OF 2013
MARY WANJIRA NJIRU .............................................................APPLICANT
VERSUS
JULIA MUTHANJE NJIRU .......................................................RESPONDENT
RULING
The Notice of Motion dated 30th April 2013 seeks the substantive prayer that this Court stays or restrains the respondent from executing Resident Magistrate’s order dated 27th February 2013 that is removing the caution on L.R GATURI/NEMBURE/9862 till hearing and disposal of an intended appeal or otherwise directed by this Honourable Court.
The same is supported by the plaintiff/applicant’s affidavit.
The application is opposed and the defendant/respondent has filed grounds of objection in which she alleges, inter alia, that the application is frivolous and an abuse of the Court process.
Counsels for both parties have filed their submissions which I have considered.
The application is brought under Order 42 Rule 6 (b) of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act. Order 42 Rule 6 (1) of the Civil Procedure Rules provides for stays in case of appeal and sub-rule 6 gives this Court the power, in the exercise of it’s appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided that “the procedure for instituting any appeal from the subordinate Court or tribunal has been complied with”.
Section 1A and 3A of the Civil Procedure Act provide for the overriding objective of the Act which is the just, expeditious, proportionate and affordable resolution of civil disputes and also provide for the Court’s inherent powers.
It is clear to me, therefore, that before a party can avail himself of the remedy under Order 42 Rule 6 (b) of the Civil Procedure Rules, the applicant has to have commenced “the procedure for instituting an appeal from a subordinate Court or tribunal”.
From the record herein, there is no evidence to suggest that any appeal has been filed against the order or the Resident Magistrate dated 27th February 2013. An intention to appeal is manifested by a Notice of Appeal – see SAFARICOM LTD VS OCEAN VIEW RANCHING HOTEL LTD & TWO OTHERS CIVIL APPLICATION NO. 327 OF 2009 (2010) e K.L.R. Without a notice of appeal, the applicant cannot get the order sought. I notice from the record that there was High Court Civil Appeal No. 11 of 2013 filed at Embu before this matter was transferred here. However, that appeal was struck out by Lady Justice Ong’udi on 18th April 2013 and there is no evidence that another appeal was subsequently filed in this Court. Whereas the High Court has inherent powers, such powers are exercised in accordance with the law. The law is that while there may be no actual appeal already filed, there must nevertheless be an intention to appeal which is manifested by a notice of appeal. There is no such notice here.
Ultimately therefore, the Notice of Motion dated 30th April 2013 is dismissed with costs.
B.N. OLAO
JUDGE
29TH AUGUST, 2013
29/8/2013
Coram
B.N. Oloa – Judge
CC – Muriithi
Mr. Mugo for Applicant – present
Mr. Mwangi for Respondent – present
COURT: Ruling delivered this 29th day of August 2013 in open Court.
B.N. OLAO
JUDGE
29THAUGUST, 2013