[2004] KEHC 2133 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay in filing the application for stay of execution and the notice of appeal. Furthermore, there was no evidence on record to support the applicant's assertion that an application for enlargement of time had been...
Source-derived case information.
- Citation
- [2004] KEHC 2133 (KLR)
- Parties
- Applicant: Omar Makonde Mturi; Respondent: Benson Mwadzombo Hanga
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 285 of 1999
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Appeals, Delay in Filing, Civil Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Makonde Mturi
Applicant
Benson Mwadzombo Hanga
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 delay in filing the application and notice of appeal is excusable.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay in filing the application for stay of execution and the notice of appeal. Furthermore, there was no evidence on record to support the applicant's assertion that an application for enlargement of time had been made to the Court of Appeal. The absence of a valid notice of appeal as required by the Civil Procedure Rules was fatal to the application. Consequently, the court held that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 285 OF 1999 OMAR MAKONDE MTURI ……………………………… PLAINTIFF - Versus - BENSON MWADZOMBO HANGA ……………………... DEFENDANT
R U L I N G
This is an application for stay of execution pending appeal. The judgment the Applicant seeks to appeal against was delivered on the 27th July 2003 on which date the court also granted a temporary stay of execution for seven days to enable the applicant make a formal application for stay. The application was not made until 6th November 2003 when the decree holder was taking steps to execute the decree. No good reason has been given for this inordinate delay.Besides that the Applicant filed the Notice of Appeal on 23rd September 2003 more than one and half months out of time. He says he has applied to Court of Appeal to enlarge time. There is, however, nothing on record to prove that assertion. As far as this court is concerned there is no Notice of Appeal filed as required by Order 41 Rule 4 of the Civil Procedure Rules. In circumstances does the Applicant expect this court to take him seriously? If he does he is seriously mistaken. The application has no merit and is hereby dismissed with costs.
DATED this 10th day of June 2004.
D.K. Maraga Ag.JUDGE