[2012] KEHC 3701 (KLR)
The court found that the application was incompetent because it referred to a different case number from the one appealed from. The memorandum of appeal referenced Kakamega CMCC 422 of 2006, but the proceedings of the lower court were not annexed, making it unclear whether the discrepancy was a typographical error...
Source-derived case information.
- Citation
- [2012] KEHC 3701 (KLR)
- Parties
- Applicant: Mumias Sugar Co. Ltd.; Applicant: Isaac Sheunda; Respondent: Aloise Mutsayi Walunya t/a Isongo Jaggery Factory; Respondent: The Honourable The Attorney General; Respondent: AIP Charles Ouma; Respondent: AIP James Wekesa; Respondent: Cpl. Sabastian Manyonyi; Respondent: PC Thomas Limo; Respondent: Jackson Wanyama; Respondent: Daniel Martin
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 65 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application struck out as incompetent with costs to the respondent
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Competency of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mumias Sugar Co. Ltd.
Applicant
Isaac Sheunda
Applicant
Aloise Mutsayi Walunya t/a Isongo Jaggery Factory
Respondent
The Honourable The Attorney General
Respondent
AIP Charles Ouma
Respondent
AIP James Wekesa
Respondent
Cpl. Sabastian Manyonyi
Respondent
PC Thomas Limo
Respondent
Jackson Wanyama
Respondent
Daniel Martin
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for stay of execution and leave to appeal out of time is competent given the discrepancy in case numbers.
- 2 Whether the applicants are entitled to a stay of execution pending appeal.
- 3 Whether leave to file an appeal out of time should be granted.
Ratio Decidendi
The court found that the application was incompetent because it referred to a different case number from the one appealed from. The memorandum of appeal referenced Kakamega CMCC 422 of 2006, but the proceedings of the lower court were not annexed, making it unclear whether the discrepancy was a typographical error or whether there were two suits involving the same parties. In the absence of clarity and proper documentation, the court could not grant the orders sought. The application was therefore struck out with costs to the respondent.
Court Disposition
application struck out as incompetent with costs to the respondent
Orders
- The application is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CIVIL APPLICATION 65 OF 2011
MUMIAS SUGAR CO. LTD. ............................................................. 1ST APPLICANT
ISAAC SHEUNDA ........................................................................... 2ND APPLICANT
V E R S U S
ALOISE MUTSAYI WALUNYA t/a ISONGO
JAGGERY FACTORY ...................................................................1ST RESPONDENT
THE HONOURABLE THE ATTORNEY GENERAL ................... 2ND RESPONDENT
AIP CHARLES OUMA ................................................................ 3RD RESPONDENT
AIP JAMES WEKESA .................................................................4TH RESPONDENT
CPL. SABASTIAN MANYONYI .................................................. 5TH RESPONDENT
PC THOMAS LIMO ..................................................................... 6TH RESPONDENT
JACKSON WANYAMA ............................................................... 7TH RESPONDENT
DANIEL MARTIN ......................................................................... 8TH RESPONDENT
RULING
The application dated 26. 10. 11 seeks the following orders:-
“a) That this Honourable court be pleased to grant temporary stay of execution of the court decree and judgment in Kakamega CMCC No. 422 of 2006 pending the hearing and determination of this application inter-partes.
b) That the Honourable court be pleased to grant stay of execution of the court’s decree and Judgment in Kakamega CMCC 422 of 2006 pending the hearing and final determination of he intended Appeal.
c) That Applicant be granted leave to file this appeal out oftime.
d) That costs and incidentals to this application to abide by the result of the intended appeal.”
The application is supported by the annexed affidavit of EMILY K. OTIENO sworn on 26. 10. 11.
The application is opposed to as per the grounds of opposition dated 2. 11. 11.
The memorandum of appeal filed herein refers to Kakamega CMCC 422 of 2006. The proceedings of the lower court have not been annexed. It is therefore not clear whether the difference in the case numbers cited is a typographical error or whether the same parties have two suits.
Order 22 rule 25 of the Civil Procedure rules provides for stay of execution pending suit between the Decree Holder and the Judgment Debtor. With the application herein referring to a different case number from the one appealed from, I hold that the application is incompetent.
Consequently, the application is struck out with costs to the Respondent.
Delivered, dated and signed at Kakamega this 15th day of March, 2012
B. THURANIRA JADEN
J U D G E