[2023] KEELC 21442 (KLR)
The court found that the application for stay of execution was properly served on the respondents, as evidenced by the affidavit of service and the acknowledgment by the respondents' advocate. Since the application was unopposed, and in order to allow the defendants an opportunity to prosecute their appeal without...
Source-derived case information.
- Citation
- [2023] KEELC 21442 (KLR)
- Parties
- Plaintiff: Abdullah Mangi Mohammed; Plaintiff: Prof MS Abdalla; Defendant: Katana Charo Kombe; Defendant: Karisa Charo Kombe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 202 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed as prayed in Prayer No 2 of the application dated 25/9/2023. Costs to abide the outcome of the appeal.
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Appeals, Service of Process, Trusteeship, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdullah Mangi Mohammed
Plaintiff
Prof MS Abdalla
Plaintiff
Katana Charo Kombe
Defendant
Karisa Charo Kombe
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendants are entitled to a stay of execution of the judgment pending determination of the appeal.
- 2 Whether the application for stay was properly served on the respondents.
Ratio Decidendi
The court found that the application for stay of execution was properly served on the respondents, as evidenced by the affidavit of service and the acknowledgment by the respondents' advocate. Since the application was unopposed, and in order to allow the defendants an opportunity to prosecute their appeal without the risk of execution, the court exercised its discretion to grant the stay of execution as prayed. The costs of the application were ordered to abide the outcome of the appeal.
Court Disposition
Application for stay of execution allowed as prayed in Prayer No 2 of the application dated 25/9/2023. Costs to abide the outcome of the appeal.
Orders
- Stay of execution of the judgment and/or decree in this suit pending the hearing and determination of Civil Appeal No 042 of 2022, Malindi.
- Costs of the application shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
Mohammed & another (Suing as Trustees of Masjid Jibran Mtwapa) v Kombe & another (Environment & Land Case 202 of 2018) [2023] KEELC 21442 (KLR) (9 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21442 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 202 of 2018
FM Njoroge, J
November 9, 2023
Between
Abdullah Mangi Mohammed
1st Plaintiff
Prof MS Abdalla
2nd Plaintiff
Suing as Trustees of Masjid Jibran Mtwapa
and
Katana Charo Kombe
1st Defendant
Karisa Charo Kombe
2nd Defendant
Ruling
1. The defendant’s application dated 25/9/2023 seeks orders of stay of execution of judgment and/or decree in the present suit pending the hearing and determination of the appeal filed against the court’s decision, to wit Civil Appeal No 042 Of 2022 Malindi. The application came up on 2/10/2023 when this court ordered that the same be served and an affidavit of service be filed, and also that the same be disposed of by way of written submissions after the respondents had filed their response. A time frame was given for the filing of the submissions. The respondents however never filed any response and this is despite the indication that they were served with the application on 3/10/2023 as ordered by court. Service on them was acknowledged by their advocate’s stamp and signature on a copy of the application which exhibit was attached to the affidavit of service. I am therefore persuaded that the application was indeed served and is unopposed. Consequently, in order to grant the appellant an opportunity of ventilating his filed appeal, I hereby allow the application dated 25/9/2023 as prayed in Prayer No 2 thereof. The costs of the application shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 9TH DAY OF NOVEMBER, 2023. MWANGI NJOROGEJUDGE, ELC, MALINDI.