[2022] KEELC 1372 (KLR)
The court found that, at the ex parte stage, the applicant had demonstrated sufficient grounds to warrant conditional stay of execution pending inter partes hearing. The delay in filing the appeal was attributed to administrative and logistical challenges at the court registry rather than any fault of the applicant...
Source-derived case information.
- Citation
- [2022] KEELC 1372 (KLR)
- Parties
- Applicant: Said Abdi Gonjobe; Respondent: Mary Jomoo Esekon
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E002 of 2022
- Procedural Posture
- Miscellaneous Application / Ex Parte Interim Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Conditional stay of execution granted; application to be served and heard inter partes.
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Abdi Gonjobe
Applicant
Mary Jomoo Esekon
Respondent
Procedural Posture
Miscellaneous Application / Ex Parte Interim Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the ruling of the Principal Magistrate in ELC No. 6 of 2019.
- 2 Whether a stay of execution of the lower court's orders should be granted pending the hearing and determination of the application.
- 3 Whether the applicant should be required to deposit security as a condition for stay of execution.
Ratio Decidendi
The court found that, at the ex parte stage, the applicant had demonstrated sufficient grounds to warrant conditional stay of execution pending inter partes hearing. The delay in filing the appeal was attributed to administrative and logistical challenges at the court registry rather than any fault of the applicant or his advocate. However, the court emphasized that the grant of stay of execution is conditional upon the applicant depositing security with the court, as mandated by Order 42 Rule 6 of the Civil Procedure Rules. The court therefore granted a conditional stay of execution and directed service of the application upon the respondent, with a further hearing date set for inter...
Court Disposition
Conditional stay of execution granted; application to be served and heard inter partes.
Orders
- The application is to be served upon the respondent within 14 days.
- Stay of execution is granted on condition that the applicant deposits KES 50,000 as security within 30 days, failing which the stay lapses.
Full Case Text
Judgment text and source record
31 paragraphs
THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ISIOLO
MISC. APPLICATION NO. E002 OF 2022
SAID ABDI GONJOBE..........................................................PLAINTIFF
VERSUS
MARY JOMOO ESEKON................................................DEFENDANT
RULING
1. This application is dated 17th February, 2022. It seeks the following orders:
1. That this honourable court be pleased to allow the applicant fill (sic) an appeal against the ruling dated 23/11/2021 by the honourable E. NGIGI PRINCIPAL MAGISTRATE ISIOLO LAW COURT in ELC NO 6 OF 2019 out of time.
2. That this honourable court be pleased to order stay of execution of the orders issued by the principal magistrate in ELC case no. 6 of 2019 herein pending the hearing and determination of this applicant (sic).
3. That the cost of this application be provided for.
2. The application is supported by the affidavit of SAID ABDI GONJOBE, the applicant sworn on 17th February, 2022 and has the following grounds:
a) That the hounorable E NGIGI principal magistrate ordered me to pay a throw away cost of Ksh. 30,000/= to the defendant despite the fact that she has never attended hearing of this case even a single day since it was filed in court.
b) That my advocate filed a notice of appeal and a memorandum of appeal in court on 17th December 2021.
c) That when he filed the same he was informed that there is no network to generate a receipts for payment of court fees.
d) That he was advised by the court clerk that he leave the copies with him who will once the network resume generate a receipt for payment for the court fees and make a call to him
e) That on 20th December 2021, my advocate made a call to the said court clerk who informed him that the network had not yet resumed.
f) That he proceeded on Christmas leave and resumed office on 5th of January 2022.
g) That he went back to court and was informed that the court clerk had not resumed from his holiday and the file could not be traced.
h) That when the court clerk resumed from his leave, he retrieved the court file from the lower court bundles on 11th January 2022 and the memorandum of appearance received with the lower court file (sic).
i) That my advocate had not refused to file this appeal in time but the blame lies squarely with the court.
3. Having considered the application at this exparte stage, I do note that prayer No. 2 seeks a stay of execution. The apposite provision in the Civil Procedure Rules which is Order 42 Rule 6 requires that security be deposited before an order for stay of execution can be granted. As the court hears the application, I will direct that the applicant deposits the apposite security with court within 30 days of today.
4. The following orders are issued:
a) This application is to be served upon the respondent within 14 days of today
b) Stay of execution in terms of prayer 2 is granted on condition that the applicant will deposit with court as security a sum of 50,000/= within 30 days of today FAILING which this conditional stay will automatically lapse
c) The application will be heard inter-partes on 21/3/2022.
DELIVERED IN CHAMBERS THIS 21ST DAY OF FEBRUARY, 2022 IN THE PRESENCE OF:
COURT ASSISTANT: DENGE
APPLICATION BE HEARD EXPARTE – PARTIES NOT PRESENT
HON. JUSTICE P.M. NJOROGE
JUDGE