[2024] KEHC 880 (KLR)
The court found that the applicant failed to serve the respondent with the application for stay of execution, despite being granted time to do so. No submissions were filed, and the respondent was not given an opportunity to be heard. The court held that granting the orders sought in the absence of service would...
Source-derived case information.
- Citation
- [2024] KEHC 880 (KLR)
- Parties
- Appellant: Evance Onyango Otieno; Respondent: Beryl Kottonya Omune
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E103 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay of Execution
- Outcome
- application dismissed for want of service
- Judges
- KW Kiarie
- Legal Topics
- Stay of Execution, Interlocutory Applications, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evance Onyango Otieno
Appellant
Beryl Kottonya Omune
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to a temporary stay of execution of the court order dated 29th November 2023.
- 2 Whether the applicant complied with the requirement to serve the respondent before the hearing of the application.
- 3 Whether failure to serve the respondent justifies dismissal of the application.
Ratio Decidendi
The court found that the applicant failed to serve the respondent with the application for stay of execution, despite being granted time to do so. No submissions were filed, and the respondent was not given an opportunity to be heard. The court held that granting the orders sought in the absence of service would prejudice the respondent and violate principles of fairness and natural justice. Consequently, the application was dismissed for want of service.
Court Disposition
application dismissed for want of service
Orders
- The application dated 4th December 2023 is dismissed.
- No orders as to costs; costs to abide by the cause of appeal.
Full Case Text
Judgment text and source record
19 paragraphs
Otieno v Omune (Civil Appeal E103 of 2023) [2024] KEHC 880 (KLR) (6 February 2024) (Ruling)
Neutral citation: [2024] KEHC 880 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal E103 of 2023
KW Kiarie, J
February 6, 2024
Between
Evance Onyango Otieno
Appellant
and
Beryl Kottonya Omune
Respondent
Ruling
1. Evance Onyango Otieno, the appellant/applicant, moved the court through a Notice of motion dated the 4th day of December 2023. The applicant is seeking the following orders:a.That this court do certify this matter as urgent but hear it ex parte in the first instance. [Spent]b.That pending hearing of this application inter-parties, this court be pleased to grant a temporary stay of execution of court order/ruling dated 29th November 2023; for the avoidance of doubt, conservatory orders maintaining the status quo in terms of possession, use and safe custody of Motor vehicle KCA 812R and KCB 242W and the public address subject to this suit be maintained to the applicant until this application is heard and concluded.c.That after hearing this application, this court will be pleased to grant a temporary stay of execution of court orders/ruling dated 29th November 2023 for the avoidance of doubt, conservatory orders maintaining the status quo in terms of possession, use and safe custody of Motor vehicle KCA 812R and KCB 242W and the public address subject to this be maintained to the applicant until this appeal is heard and concluded.d.That costs to abide by the cause of appeal.
2. The application was premised on the following grounds:a.That the motor vehicle registration numbers KCA 812R and KCB 242W were registered in the applicant’s name.b.That the trial court ordered the said motor vehicles to be deposited at Oyugis Police Station without any justification.c.That the motor vehicles in issue are the applicant’s tools of trade.
3. When the applicant was before the court on the 6th day of December 2023, he was ordered to serve the respondent for an inter partes hearing scheduled for 18th January 2024. On the appointed day, he had not served. His advocate sought two days to file and serve submissions. The ruling was reserved for delivery on February 6, 2024.
4. When this ruling was written on January 30th, 2024, the respondent had not been served, and no submissions were filed. The orders sought cannot, therefore, be granted. This will disadvantage the respondent who was not served. The application is dismissed.
DELIVERED AND SIGNED AT HOMA BAY THIS 6TH DAY OF FEBRUARY 2024KIARIE WAWERU KIARIE....................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR