[2019] KEHC 9780 (KLR)
The court held that the Notice of Motion dated 3/1/19, which sought a stay of execution or further proceedings pending the Supreme Court's determination, was rendered moot by the Supreme Court's final judgment. Since the appeal had been conclusively determined, the basis for the application no longer existed....
Source-derived case information.
- Citation
- [2019] KEHC 9780 (KLR)
- Parties
- Applicant: Musa Cherutich Sirma; Respondent: The Independent Electoral and Boundaries Commission (IEBC); Respondent: The Eldama Ravine Constituency Returning Officer (Ndirangu Peter Kuria); Respondent: Moses Lessonet
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petitions / Ruling on Notice of Motion for Stay Pending Supreme Court Determination
- Outcome
- Application declined as overtaken by events; no order as to costs.
- Judges
- EM Muriithi
- Legal Topics
- Stay of Proceedings, Finality of Supreme Court Decisions, Costs Orders, Election Petition Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Cherutich Sirma
Applicant
The Independent Electoral and Boundaries Commission (IEBC)
Respondent
The Eldama Ravine Constituency Returning Officer (Ndirangu Peter Kuria)
Respondent
Moses Lessonet
Respondent
Procedural Posture
Election Petitions / Ruling on Notice of Motion for Stay Pending Supreme Court Determination
Legal Issues
- 1 Whether the Notice of Motion seeking stay of execution or further proceedings is sustainable after the Supreme Court's final decision.
- 2 Whether any orders can issue on an application pegged to a now-finalized appeal.
- 3 Whether costs should be awarded in the circumstances.
Ratio Decidendi
The court held that the Notice of Motion dated 3/1/19, which sought a stay of execution or further proceedings pending the Supreme Court's determination, was rendered moot by the Supreme Court's final judgment. Since the appeal had been conclusively determined, the basis for the application no longer existed. Consequently, no orders could issue on the application, and it was declined. In line with the Supreme Court's direction, the court exercised its discretion not to award costs to any party.
Court Disposition
Application declined as overtaken by events; no order as to costs.
Orders
- The Notice of Motion dated 3/1/19 is declined.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
ELECTION PETITION NO. 1 OF 2017
MUSA CHERUTICH SIRMA.........................PETITIONER/APPLICANT
VERSUS
THE INDEPENDENT ELECTORAL AND BOUNDARIES
COMMISSION (I.E.B.C...................................................1ST RESPONDENT
THE ELDAMA RAVINE CONSTITUENCYRETURNING
OFFICER(NDIRANGU PETER KURIA)...................2ND RESPONDENT
MOSES LESSONET.........................................................3RD RESPONDENT
RULING
1. By Notice of Motion dated 3/1/2019 the Applicant/Petitioner moved the Court for specific orders as follow:
1)THATThis Honourable Court be pleased to certify this application as urgent and heard on priority basis and service of the same be dispensed with at the first instance.
2)THATThe Honourable Court be pleased to grant stay of execution and/or of further proceedings herein pending the hearing and determination of this Application.
3)THATThe Honourable Court be pleased to grant stay of execution and/or of further proceedings herein pending the determination of by Supreme Court in the matter herein in Petition No. 3 of 2018.
4)THATcosts of this application be provided for.
2. At the time of hearing the Notice of Motion only prayer 3 is live, prayer no. 2 being spent by the very act of hearing of the Motion on 24/1/2019.
3. By its Judgment of 18/1/19, the Supreme Court disallowed the appeal by the applicant from the decision of the Court of Appeal striking out the appeal for the determination of Election Court, as follows:
c) Reliefs
[61]The above holding disposes of the prayers in the Petition of Appeal that the “appeal be allowed” and “the Ruling and subsequent orders of the Court of Appeal delivered on 31st May 2018 be set aside in its entirety”. We have shown why those orders cannot be granted. The prayer for hearing of the Appeal at the Court of Appeal on its merits is a consequential one and it is obvious why it cannot be allowed.
[62]Regarding the striking out of the Record of Appeal, once we have found that the Notice of Appeal was properly struck out, no record of appeal can stand.
d) Costs
[63]The only remaining issue at this point is to decide on who is to bear the burden of costs in these proceedings. Ordinarily, costs follow the event. However, in this case, we shall exercise our discretion and direct the parties to bear their own costs(See Jasbir Singh Rai & 3 Others v. Tarlocham Singh Rai & 4 Others SC Petition No. 4 of 2012; [2014] eKLR.)
4. The Supreme Court’s decision above has put the matter to rest and effectively taken away the substratum of the Petitioner’s application before this Court by Notice of Motion dated 3/1/19. The same cannot stand, as it is pegged to the pendency of the appeal, which has now been finalized.
5. No orders can therefore issue upon the Notice of Motion herein, which must be adjudged as overtaken by the event of the Supreme Court’s final decision on the matter. Accordingly, the Notice of Motion dated 3/1/19 is declined.
6. Following on the prompting of the Supreme Court, there shall be no order as to costs in this application.
Order accordingly.
DATED AND DELIVERED THIS 19TH DAY OF FEBRUARY 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
1. M/S Prof. Tom Ojienda & Associates for Petitioner
2. M/S Gordon Ogolla, Kipkoech & Co. Advocates for the 3rd Respondent
3. M/S Mirugi Kariuki & Co. Advocates for 1st & 2nd Respondent