[2018] KEHC 6952 (KLR)
The court found that the applicant failed to demonstrate that he had applied for the proceedings necessary for the intended appeal and had not offered to deposit the taxed costs in court. These omissions meant he did not satisfy the requirements for a stay of the warrants of arrest or the grant of letters of...
Source-derived case information.
- Citation
- [2018] KEHC 6952 (KLR)
- Parties
- Applicant: Michael Patrick Lusiro; Respondent: Bonface Sande Lusiro; Respondent: Douglas Onyango Okumu
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 32 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application partly allowed.
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Warrants of Arrest, Costs Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Patrick Lusiro
Applicant
Bonface Sande Lusiro
Respondent
Douglas Onyango Okumu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to a stay of the warrants of arrest pending appeal.
- 2 Whether the applicant is entitled to a stay of the grant of letters of administration pending appeal.
- 3 Whether the applicant should be granted leave to appeal out of time.
Ratio Decidendi
The court found that the applicant failed to demonstrate that he had applied for the proceedings necessary for the intended appeal and had not offered to deposit the taxed costs in court. These omissions meant he did not satisfy the requirements for a stay of the warrants of arrest or the grant of letters of administration. However, the court exercised its discretion to grant leave to appeal out of time, as sought by the applicant, with costs to abide the outcome of the appeal.
Court Disposition
Application partly allowed.
Orders
- Prayers for stay of warrants of arrest and stay of grant of letters of administration are declined.
- Leave to appeal out of time is granted to the applicant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
MISCELLANEOUS CIVIL APPLICATION NO. 32 OF 2018
MICHAEL PATRICK LUSIRO.........APPELLANT/APPLICANT
VERSUS
BONFACE SANDE LUSIRO
DOUGLAS ONYANGO OKUMU......................RESPONDENTS
RULING
1. The application is brought by way of Notice of Motion dated 11th April 2018 under sections 1A, 1B, 33A (sic) and 63(e) of the Civil Procedure Act and Order 22(1) (sic) Civil Procedure Rules and any other enabling provisions of the law. The applicant is seeking for orders in the following terms:
a) That the application be heard ex-parte at the first instance. (Spent).
b) That the warrants of arrest issued on 13th December 2017 be stayed pending the determination of the appeal.
c) That the grant of letters of administration issued on 2nd July 2008 and confirmed on 3rd February 2009 be stayed until the intended appeal is heard and determined.
d) That the applicant to be granted leave to appeal out of time.
2. The application was premised on grounds that he was not satisfied with the ruling and that he currently resides on land parcel number SAMIA/WAKHUNGU/ODIADO/1761.
3. The application was opposed on grounds that there is no evidence that the applicant has applied for the proceedings to facilitate the intended appeal.
4. The application was wrongly drafted and I was left to fill in the gaps. It cited nonexistent section 33 A of the civil Procedure Act and Order 22(1) Civil Procedure Rules. This notwithstanding, I will address myself to the correctly cited legal provisions.
5. The warrants in issue emanated from costs that were taxed. The applicant ought to have made an offer to deposit the costs in court pending the determination of the appeal. He has not made any offer at all. Secondly, he has not demonstrated that he has applied for the proceedings. The ruling that gave rise to the costs the subject of the warrant of arrest was delivered on 22nd June 2017. Am aware if indeed he applied for proceedings, the same would have been supplied within a month of application. Had he demonstrated that he applied for the proceedings and the fault is on the registry, probably this would have persuaded this court. This is not the position now. He has not therefore satisfied this court and prayers (b) and (c) cannot be granted. I however grant him leave to appeal out of time. Costs shall abide the outcome of the appeal.
DELIVEREDandSIGNEDatBUSIA this 8thdayof May, 2018
KIARIE WAWERU KIARIE
JUDGE.