[1997] KECA 236 (KLR)
The court held that it lacked jurisdiction to entertain the application for variation or rescinding of its previous order because the grounds advanced by the applicants did not fall within the conditions specified in Rule 56(1) of the Court of Appeal Rules. The application was, in substance, an attempt to have the...
Source-derived case information.
- Citation
- [1997] KECA 236 (KLR)
- Parties
- Applicant: Mugo Waithaka; Applicant: Njihia Mugo; Applicant: Ndungu Mugo; Applicant: Mwangi Mugo; Respondent: Mwaura Gitau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 76 of 1997
- Procedural Posture
- Civil Application / Application for Variation/rescinding of Court Order and Stay of Execution Pending Appeal
- Outcome
- Application dismissed with costs to the respondent.
- Judges
- RO Kwach, AM Akiwumi, AB Shah
- Legal Topics
- Variation of Orders, Stay of Execution, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugo Waithaka
Applicant
Njihia Mugo
Applicant
Ndungu Mugo
Applicant
Mwangi Mugo
Applicant
Mwaura Gitau
Respondent
Procedural Posture
Civil Application / Application for Variation/rescinding of Court Order and Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court has jurisdiction to vary or rescind its previous order under the cited rules in the circumstances presented.
- 2 Whether the application for stay of execution pending appeal can be granted after a previous ruling on the same issue.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for variation or rescinding of its previous order because the grounds advanced by the applicants did not fall within the conditions specified in Rule 56(1) of the Court of Appeal Rules. The application was, in substance, an attempt to have the court revise its earlier order, which the court found to be an abuse of process. Consequently, the application for stay of execution also failed, as the court's previous ruling on the matter was conclusive.
Court Disposition
Application dismissed with costs to the respondent.
Orders
- The application for variation/rescinding of the court's previous order is dismissed.
- The application for stay of execution pending appeal is dismissed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, AKIWUMI & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI. 76 OF 1997 (34/97 UR)
BETWEEN
1. MUGO WAITHAKA
2. NJIHIA MUGO
3. NDUNGU MUGO
4. MWANGI MUGO ...................................... APPLICANTS
AND
MWAURA GITAU ........................................ RESPONDENT
(An application for Variation/Rescinding of this honourable court's Ruling dated 11th April, 1997 and for stay of execution pending an Appeal against the Judgment/Decree of the High Court of Kenya at Nakuru (Justice Rimita) dated 5th day of February, 1996 in H.C.C.C. NO. 111 OF 1989)
**********
RULING OF THE COURT
The present application has been brought under Rules 56(2) and 5(2) for a variation of our order of 11th April, 1997 and a stay of execution pending appeal. Rule 56(2) must be read together with read together with Rule 56(1) whereunder a variation of a previous order can only be sought -
(a)if the order was one extending time for doing an act or
(b)the order was one permitting the doing of some act. But the grounds for seeking the variation is not one of the conditions set out in Rules 56(1). It is rather that this court did not appreciate the fact that the Applicants were actually in occupation of the suit land. We have no jurisdiction on the basis of the present application to hear this application. It is we par an attempt to make us revise our previous order of 11th April, 1997 which is also an abuse of this court's process. As regards the application for stay, our ruling of 11th April, 1997 speaks for itself and the relief sought thereunder must also fail.
The respondent will have his costs for this application assessed at Shs.7,000/= to be paid within 7 days and in default execution to issue.
Dated and delivered at Nairobi this 28th day of April, 1997.
R. O. KWACH
.................
JUDGE OF APPEAL
A. M. AKIWUMI
.................
JUDGE OF APPEAL
A. B. SHAH
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.