[2024] KEHC 10963 (KLR)
The court held that the application for stay of execution and leave to appeal out of time was improperly filed as a miscellaneous cause rather than in the original succession cause (Busia HCSC No. 18 of 2016) where the impugned orders were made. Such a filing is an abuse of court process because it leads to...
Source-derived case information.
- Citation
- [2024] KEHC 10963 (KLR)
- Parties
- Applicant: Wilfrida Otieno Ngesa; Respondent: Samuel Wafula; Respondent: Mary Atieno
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E019 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal Out of Time
- Outcome
- Application not determined on merits; directions issued for consolidation and mention.
- Judges
- WM Musyoka
- Legal Topics
- Abuse of Court Process, Leave to Appeal Out of Time, Stay of Execution, Proper Forum for Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wilfrida Otieno Ngesa
Applicant
Samuel Wafula
Respondent
Mary Atieno
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for stay of execution and leave to appeal out of time was properly filed in a miscellaneous cause rather than in the original succession cause.
- 2 Whether filing a miscellaneous application in these circumstances amounts to an abuse of court process.
- 3 What is the appropriate course of action when an application is filed in the wrong forum.
Ratio Decidendi
The court held that the application for stay of execution and leave to appeal out of time was improperly filed as a miscellaneous cause rather than in the original succession cause (Busia HCSC No. 18 of 2016) where the impugned orders were made. Such a filing is an abuse of court process because it leads to multiplicity of proceedings and confusion. However, recognizing that the applicant was acting in person and in the interest of substantive justice, the court declined to dismiss the application outright. Instead, the court directed that the file for the original cause be traced and consolidated with the present file, so that the application could be properly considered in the correct...
Court Disposition
Application not determined on merits; directions issued for consolidation and mention.
Orders
- Deputy Registrar to trace and consolidate Busia HCSC No. 18 of 2016 file with the instant file.
- Matter to be mentioned on 8th October 2024 for further directions.
Full Case Text
Judgment text and source record
22 paragraphs
Ngesa v Wafula & another (Miscellaneous Application E019 of 2024) [2024] KEHC 10963 (KLR) (20 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10963 (KLR)
Republic of Kenya
In the High Court at Busia
Miscellaneous Application E019 of 2024
WM Musyoka, J
September 20, 2024
Between
Wilfrida Otieno Ngesa
Applicant
and
Samuel Wafula
1st Respondent
Mary Atieno
2nd Respondent
Ruling
1. The application, dated 25th April 2024, seeks stay of execution of orders made on 29th January 2019 for confirmation of a grant, and leave to lodge an appeal out of time with respect to the said orders.
2. The impugned orders, made on 29th January, 2019, were not made in this cause, but in another, being Busia HCSC No. 18 of 2016. The ideal situation, where one desires to challenge, on appeal, orders made in a particular cause, is to seek orders for leave to lodge the appeal, if he or she happens to be out of time, in the cause where the orders were made. It does not lie with initiating a miscellaneous cause, for leave to appeal against the impugned orders made in another cause. Filing a miscellaneous cause, in such a scenario, would amount to filing multiple causes or suits, which is unnecessary, and it merely wastes time and causes confusion. It could amount to an abuse of the court process.
3. What I am saying, in short, is that the Motion, dated 25th April 2024, ought to have been filed in Busia HCSC No. 18 of 2016, and that the filing of this miscellaneous cause was in abuse of court process.
4. Although it was filed in abuse of court process, I shall not dismiss it outright, seeing that the applicant is acting in person. I shall give her the benefit of the doubt, and bend towards substantive justice. As the said application belongs in Busia HCSC No. 18 of 2016, and not in these separate proceedings, I shall not decide it here, but in the cause where it belongs.
5. Consequently, I hereby direct the Deputy Registrar to cause the court file in Busia HCSC No. 18 of 2016 to be traced, and to be put together with the instant file, so that, after perusing it, I may consider whether to consolidate the 2 causes. The matter shall thereafter be mentioned on 8th October 2024, on the way forward. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 20THDAY OF SEPTEMBER 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Ms. Wilfrida Otieno Ngesa, the applicant in person.AdvocatesMr. Odera, instructed by Odhiambo Odera & Company, Advocates for the respondents.