[2014] KEHC 4798 (KLR)
The court found that the applicant had failed to prosecute the application for stay of execution, as there was no attendance in court on several occasions despite being duly served and no written submissions were filed. The court exercised its discretion to dismiss the application for non-attendance and want of...
Source-derived case information.
- Citation
- [2014] KEHC 4798 (KLR)
- Parties
- Appellant: Michael Musembi Kisoo; Respondent: Patricia Lucia Masua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed for non-attendance and want of prosecution
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Dismissal for Non Attendance, Public Auction Challenge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Musembi Kisoo
Appellant
Patricia Lucia Masua
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution should be granted pending appeal.
- 2 Whether the application should be dismissed for want of prosecution due to non-attendance by the applicant.
Ratio Decidendi
The court found that the applicant had failed to prosecute the application for stay of execution, as there was no attendance in court on several occasions despite being duly served and no written submissions were filed. The court exercised its discretion to dismiss the application for non-attendance and want of prosecution, holding that the applicant's inaction justified dismissal with costs to the respondent. The merits of the application for stay of execution were not considered due to the procedural default by the applicant.
Court Disposition
application dismissed for non-attendance and want of prosecution
Orders
- The application dated 1/4/2011 is dismissed for non-attendance by the applicant.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 38 OF 2011
MICHAEL MUSEMBI KISOO …… APPLICANT/APPELLANT
VERSUS
PATRICIA LUCIA MASUA ……………….……… RESPONDENT
(Being an appeal from the ruling of the Senior Resident Magistrate’s Court at Kithimani of Hon A.W Mwangi SRM in Senior Resident Magistrate Case No. 22of 2007 dated 23/2/2011)
************************************
(Before B. Thuranira Jaden J)
R U L I N G
The application dated 1/4/2011 and filed in court on 6/4/2011 seeks orders that there be a temporary stay of execution of order of transfer of plot No. 57 B Kabati to the purchaser pending the hearing inter parties and final determination of this application.
Secondly, the application seeks orders that there be a stay of effecting absolute the Public Auction conducted on 12th November 2010 by Mambu Auctioneers pending the hearing and determination of the Applicant’s appeal against the order of the court.
The application is supported by the affidavit sworn by the Applicant, Michael Musembi Kisoo.
In a nutshell, the appeal challenges the lower court orders rejecting to set aside the public auction thereby exposing the Applicant to the imminent transfer of the plot to the purchaser.
In opposition to the application, the Respondent filed a replying affidavit. It is contended that the plot has already been lawfully and procedurally sold and a certificate of sale issued by the auctioneer and the Respondent no longer has any interests in the same and that the Applicant should now pursue the purchaser.
Although the court gave directions that the application be canvassed by way of written submission, the Applicant did not file any. The Respondent filed their written submissions on 8/2/2013. The Applicant was served again personally for the hearing on 23/9/13 but once again there was no attendance on his part.
In her submissions, the Respondent submitted for the dismissal of the application for want of prosecution. That the appeal was filed without the leave of the court and that the application is incompetent and ought to be dismissed with costs.
The Applicants have failed to prosecute their application. There has been no attendance in court by the Applicant on several occasions despite being duly served. Consequently, I dismiss the application for non attendance by the Applicant with costs to the Respondent.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 15thday of May2014.
………………………………………
B. THURANIRA JADEN
JUDGE