[2016] KEHC 5323 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for the grant of stay of execution. Although the applicant requested certified proceedings and paid for them shortly after judgment, he took no further steps to prosecute the intended appeal for over a year. There was no evidence of a request...
Source-derived case information.
- Citation
- [2016] KEHC 5323 (KLR)
- Parties
- Applicant: Mwanje Shamala alias Peter Mwanje; Respondent: Muganda Mukachisia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 90 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Adverse Possession, Appeals Process, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanje Shamala alias Peter Mwanje
Applicant
Muganda Mukachisia
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant has satisfied the legal requirements for grant of stay of execution.
- 3 Whether the applicant has demonstrated sufficient cause and offered security for costs.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for the grant of stay of execution. Although the applicant requested certified proceedings and paid for them shortly after judgment, he took no further steps to prosecute the intended appeal for over a year. There was no evidence of a request for proceedings or compliance with appellate timelines, and the notice of appeal was deemed withdrawn. The applicant did not show what prejudice he would suffer if the stay was not granted, nor did he offer security for costs. The court also noted that the applicant was not in possession of the land and could be compensated by damages if successful on appeal. The application...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 15th December 2015 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE NO. 90 OF 2007
MWANJE SHAMALA ALIAS
PETER MWANJE ………………………………...PLAINTIFF
VERSUS
MUGANDA MUKACHISIA ……………………..DEFENDANT
RULING
[1] The applicant brings his Motion under Order 12 Rule 6(1) (2) (3) (4) (5) and 6 of the Civil Procedure Rules and under Order 40 Section 1,2,3 and 4 of the Civil Procedure Rules.
He prays for a stay of execution pending the hearing and determination of the applicants intended appeal before the Court of Appeal. He states that his suit of adverse possession has been dismissed by the court and that the respondents have entered forcefully on the suit land and started cultivating and constructing on the land despite the pendency of the intended appeal.
[2] The respondents in their replying affidavit state that the application is aimed at frustrating his opportunity of enjoying the fruits of justice and that he is old and sickly. That the case was decided on 24/7/2015 that a notice of appeal was filed on 6/8/2015 and nothing else has been done. That there is no indication that the applicant will file any appeal. Mr. Manyoni for the applicant stated that the application is not made in bad faith. That they are waiting for the proceedings to be typed and that they pulled this file from the typing pool. Mrs Rauto argued that judgement was read on 24/7/2015. That is now 8 months. That there is nothing to show the applicant has requested for proceedings. There is no letter asking for proceedings exhibited and no court receipt for payment for the same. That the applicant has not complied with Section 74 of the Appellate Court Rules. That an appeal must be filed within 30 days otherwise the Notice of Appeal filed is deemed as withdrawn. That in this case it was withdrawn on 6/9/2015. Further that the applicant has not shown that the Appeal has high chances of success and that he has not demonstrated that he will suffer any prejudice if the prayers sought are not granted and that he has not provided security. She prays for the application to be dismissed.
[3] I have carefully considered the application by the applicant, the submissions by his counsel. I have equally considered the reply by the counsel for the respondent. I note that this judgement was delivered on 24/7/2015 by Sitati J, who had received it from Chitebwe J who wrote it and sent it to court for delivery. The judgement was typed. It was therefore quite easy for the applicant to have a copy of the typed judgement from 24/7/2015. I am not informed that the file was missing or that photocopies of the proceedings could not be availed. The handwritten copies of the proceedings are quite legible. There was no reason why the applicant could not prepare a Memorandum of Appeal within 30 days of the judgement. The typed proceedings could then later be availed for preparation of the record of Appeal.
[4] Be that as it may, I note the applicant wrote to the deputy registrar on 27/07/2015 asking for certified proceedings and judgement for purposes of preferring an appeal. He paid for the proceedings on 29/7/2015 vide receipt No. 6896034. He then went to sleep. It is now year down the line and appeal number has been filed. I was not shown what prejudice the applicant will suffer if this application is not granted. The applicant offered no security for costs. This case does not meet the thresholds set out in Geilla Vs Casman Brown and Co. Ltd (1973) EA.I am told that the applicant is not on the land. On my perusal of his evidence in court before Chitebwe J he stated on cross examination that he does not live on the land, that he lives on his own land. There is no allegation that if an injunction is not granted the respondents cannot compensate him with money, should he file the appeal and win it.
[5] All in all, I am unable to grant the prayers sought in the motion dated 15th of December 2015. I dismiss it with costs to the respondents
Dated at Bungoma this 11th day of May 2016
S.MUKUNYA - JUDGE
Ruling read in open court in presence of
Mrs Rauto for the respondent
Firm of Momanyi for the applicant
S.MUKUNYA –JUDGE
11/5/2016