[2012] KEHC 1590 (KLR)

[2012] KEHC 1590 (KLR)

The Court found that the applicant's suit in the High Court had been dismissed and that no executable order or decree had been made in respect of the fixing of the boundary. The comments by the trial judge regarding the District Land Registrar proceeding to fix the boundary were obiter dicta and not capable of execution. The decree issued was misleading in suggesting otherwise. Since there was nothing to stay or execute, and the applicant had not demonstrated any arguable grounds of appeal or that the appeal would be rendered nugatory if stay was not granted, the application for stay of execution was dismissed. The Court also exercised its powers to correct the decree by deleting the...

Citation
[2012] KEHC 1590 (KLR)
Parties
Applicant: Moraa Ndege; Respondent: Moenga Moenga
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
10 October 2012
Case Number
Civil Application 116 of 2011
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Outcome
application dismissed
Legal Topics
Adverse Possession, Res Judicata, Boundary Disputes, Stay of Execution
Source Language
English
Land and Property Civil Procedure Adverse Possession Res Judicata Boundary Disputes Stay of Execution

Case Brief

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Parties

Moraa Ndege

Applicant

Moenga Moenga

Respondent

Procedural Posture

Stay Application / Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the applicant is entitled to a stay of execution of the decree in Kisii HCCC No. 211 of 2002 (OS).
  2. 2 Whether there exists any executable order or decree capable of being stayed.
  3. 3 Whether the applicant has demonstrated an arguable appeal and that the appeal would be rendered nugatory if stay is not granted.

Ratio Decidendi

The Court found that the applicant's suit in the High Court had been dismissed and that no executable order or decree had been made in respect of the fixing of the boundary. The comments by the trial judge regarding the District Land Registrar proceeding to fix the boundary were obiter dicta and not capable of execution. The decree issued was misleading in suggesting otherwise. Since there was nothing to stay or execute, and the applicant had not demonstrated any arguable grounds of appeal or that the appeal would be rendered nugatory if stay was not granted, the application for stay of execution was dismissed. The Court also exercised its powers to correct the decree by deleting the...

Court Disposition

application dismissed

Orders

  • The application dated 9th May, 2011 is dismissed.
  • The decree dated 4th May, 2011 is corrected by deleting order (b) in the decree.