[2009] KECA 81 (KLR)
The Court of Appeal lacks jurisdiction to entertain an application for stay of execution in respect of a judgment and decree from a subordinate court, as there is no direct appeal from the Chief Magistrate’s Court to the Court of Appeal. Furthermore, following the High Court's dismissal of the appeal for want of...
Source-derived case information.
- Citation
- [2009] KECA 81 (KLR)
- Parties
- Applicant: Mustafa Aden Gedi; Respondent: Molel arap Kirui (suing as personal representative of the estate of the late Gilbert Koskei)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 199 of 2009
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Judges
- J Wakiaga, CA Otieno, ARM Visram
- Legal Topics
- Stay of Execution, Appellate Jurisdiction, Competence of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mustafa Aden Gedi
Applicant
Molel arap Kirui (suing as personal representative of the estate of the late Gilbert Koskei)
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to grant a stay of execution in respect of a judgment and decree from a subordinate court.
- 2 Whether there is any order capable of being stayed following the High Court's dismissal of the appeal for want of prosecution.
Ratio Decidendi
The Court of Appeal lacks jurisdiction to entertain an application for stay of execution in respect of a judgment and decree from a subordinate court, as there is no direct appeal from the Chief Magistrate’s Court to the Court of Appeal. Furthermore, following the High Court's dismissal of the appeal for want of prosecution, there is no operative order or judgment capable of being stayed. The application is therefore incompetent and must be struck out with costs to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application dated 29th June, 2009 is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appli 199 of 2009
MUSTAFA ADEN GEDI …………………………..……… APPLICANT
AND
MOLEL arap KIRUI suing as personal representative
of the estate of the late GILBERT KOSKEI ..…………RESPONDENT
(Application for stay of execution pending the hearing and determination
of an intended appeal from the Ruling of theHigh Court of Kenya at Kisii,
(Muchelule, J) dated 18th June, 2009
in
H. C. C. C. NO. 225 OF 2006)
********************
RULING OF THE COURT
This is an application under Rule 5 (2) (b) of the Court of Appeal Rules (“the Rules”) for stay of execution “of the judgment and decree in Kisii CMCC No. 589 of 2009”.
Clearly, the jurisdiction of this Court under Section 3 (1) of the Appellate Jurisdiction Act, Cap 9, does not extend to appeals from subordinate courts. There is no direct appeal from the decision of the Chief Magistrate’s Court in Kisii to this final appellate court. The application is a non-starter and must, on that ground alone, be struck out. In any event, even if the prayer before this Court had been correctly worded, the applicant would not have been entitled to any orders, as, indeed, there is nothing to “stay” from the orders issued by the superior court. What was before the superior court was an application to dismiss the appeal for want of prosecution. In its judgment dated 18th June, 2009 the superior court dismissed the appeal, and the applicant intends to appeal against that decision. However, there is nothing arising from that judgment, at this stage, to “stay” [See Western College of Arts & Applied Sciences vs Oranga & Others (1976) KLR 63].
Accordingly, the application before this Court dated 29th June, 2009 is incompetent, and the same is hereby struck out with costs to the respondent.
Dated and delivered at Nairobi this 16th day of October, 2009.
P. N. WAKI
……………………
JUDGE OF APPEAL
J. W. ONYANGO OTIENO
…………………….
JUDGE OF APPEAL
ALNASHIR VISRAM
…………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR