[2020] KEELC 3289 (KLR)
The court found that the applicant failed to provide tangible evidence to support his claim of absence due to illness and did not act promptly after the dismissal of his earlier application to set aside the judgment. The application for stay of execution and extension of time was filed many years after the judgment,...
Source-derived case information.
- Citation
- [2020] KEELC 3289 (KLR)
- Parties
- Applicant: Parmatante Ole Kitere; Respondent: Matiko Ole Sadera
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 2 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Stay of Execution, Extension of Time, Appeals Out of Time, Judicial Discretion, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parmatante Ole Kitere
Applicant
Matiko Ole Sadera
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has met the threshold for grant of stay of execution pending appeal.
- 2 Whether the applicant has provided sufficient grounds for enlargement of time to file an appeal out of time.
- 3 Whether the application is time-barred and overtaken by events.
Ratio Decidendi
The court found that the applicant failed to provide tangible evidence to support his claim of absence due to illness and did not act promptly after the dismissal of his earlier application to set aside the judgment. The application for stay of execution and extension of time was filed many years after the judgment, and the respondent's assertion that the suit land no longer exists was not controverted. The court held that the application did not meet the threshold for exercise of judicial discretion, as it was filed late, lacked sufficient explanation for the delay, and there was nothing left for the court to stay. Consequently, the application was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 16th January, 2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC MISC APPL. NO. 2 OF 2019
PARMATANTE OLE KITERE........................................APPLICANT
-VERSUS-
MATIKO OLE SADERA..............................................RESPONDENT
RULING
By a Notice of Motion dated 16th January, 2019 the Applicant herein sought for orders that pending the hearing and determination of the application there be a stay of execution restraining the respondent from executing the decree arising from the Judgement of the court in Narok SPMCC No. 41 of 2002, that leave be granted to the proposed appellant to file and lodge a memorandum and record of appeal out of time against the judgment of the court delivered on 15th April, 2003. The Application was based on the grounds that Judgement was delivered in the absence of the Defendant /Applicant and that he was not present or represented during the entire proceedings and he came to know about it in 2014 and when he filed an application to set aside the said Judgement it was also dismissed. the appellant further contended that the trial court did not consider the evidence on record and His failure to file the memorandum of appeal out of time was not intentional.
The application was supported by the applicant’s own affidavit in which he deponed that the matter was heard exparte and he was sick and went to seek herbal treatment in Tanzania from 2014 to 2018 and that he was not given any chance to defend the suit against him. The Applicant further averred that after the suit was dismissed he now filed a Notice to have the same set aside but the application was dismissed and he now seeks the court’s intervention to allow him to file his application out of time.
The application was opposed by the Respondent by way of grounds of opposition in which he contends that the application has been overtaken by events as the judgment was already executed and the suit land sub divided and the suit land is no longer in existence. The respondent further contended that the application to file the appeal out of time was not brought in reasonable time and no plausible explanation was given.
I have considered the application before me and the submissions filed by the parties. The applicant seeks the court to exercise its judicial discretion as the respondent will not suffer any prejudice in the spirit of Article 159 (2) of the constitution.
The Respondent on his part has submitted that the application herein is time barred and the same is an abuse of the court process and the action to recover the suit land is extinguished. It is the respondent’s contention that the application was over taken by events and no plausible explanation was given by the applicant as to why the application was filed late.
Having considered the application and the submissions filed, what is there for the court to determine is whether the applicant has met the grounds for the court to exercise its discretion and grant a stay of execution and enlarge time to file an appeal out of time.
From the pleading it is not disputed that judgment in the trial court was delivered way back in 2003. The applicant stated that he was away to Tanzania from 2014 to 2018 seeking treatment. However, no tangible evidence has been placed before the court to ascertain their claim. Furthermore, the applicant had filed an application to set aside the judgement in 2013 which application was dismissed and he took no further action to appeal against the aforesaid ruling or to file an appeal against the original judgment.
This is an application that does not meet the basic threshold for the court to exercise its discretion in granting a stay of execution in that same was filed very late and since the averments by the Respondent that the suit land no longer exists, which argument has not been controverted, I find that there is nothing for the court to stay.
The upshot of the above is that the application lacks merit and I thus dismiss the same with costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this 4TH day of MARCH, 2020
Mohammed Kullow
Judge
4/3/2020
In the presence of:-
CA:Chuma/Kimiriny
Ms Obondo holding brief for Onduso for the applicant
N/A for the respondent
Mohammed Kullow
Judge
4/3/2020