[2015] KEHC 3375 (KLR)
The court held that it is unable to make a substantive ruling on the application for stay of execution in the absence of the judgment or a certified copy thereof from the lower court and the record of appeal. These documents are essential for the court to make an informed and reasoned decision, as they constitute...
Source-derived case information.
- Citation
- [2015] KEHC 3375 (KLR)
- Parties
- Appellant: Samuel Ndungu Kanea; Respondent: Beatrice N. Muiruri
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 136 of 2014
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Ruling deferred; interim stay orders extended for 45 days pending provision of judgment and record of appeal.
- Judges
- JK Mulwa
- Legal Topics
- Stay of Execution, Appeals Process, Children Custody Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ndungu Kanea
Appellant
Beatrice N. Muiruri
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court can grant or maintain a stay of execution of the judgment and decree in Children's Case No. 14 of 2014 without a certified copy of the judgment and the record of appeal being furnished.
- 2 Whether the absence of the primary file and judgment from the lower court precludes the High Court from making a substantive ruling on the application for stay.
Ratio Decidendi
The court held that it is unable to make a substantive ruling on the application for stay of execution in the absence of the judgment or a certified copy thereof from the lower court and the record of appeal. These documents are essential for the court to make an informed and reasoned decision, as they constitute the primary pleadings under attack in the appeal. Accordingly, the court deferred its ruling and directed the applicant/appellant to furnish the court with the required documents within 45 days. In the interim, the existing orders for stay were extended to preserve the status quo until the court is properly seized of the necessary materials to determine the application on its...
Court Disposition
Ruling deferred; interim stay orders extended for 45 days pending provision of judgment and record of appeal.
Orders
- A certified copy of the judgment in Chief Magistrate's Children's Court Case No. 14 of 2014 to be provided to this court within 45 days.
- The record of appeal to be filed within 45 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO. 136 OF 2014
(An appeal from the Judgment of Hon. Ochanda Nyahururu Resident Magistrate Court Children's Case No. 14 of 2014 delivered on 26th August, 2014)
SAMUEL NDUNGU KANEA..........................................................APPELLANT
VERSUS
BEATRICE N. MUIRURI............................................................RESPONDENT
RULING
I have perused the court record in this matter. A memorandum of appeal was filed on the 23rd September, 2014 and amended and filed on the 22nd December, 2004. The record of appeal is yet to be filed.
Some interim orders were granted to the Applicant/Appellant in this appeal on the 27th October, 2014 which orders have been extended over and over, the last such extension given on the 11th February, 2015 pending the hearing and determination of the application dated the 27th October, 2014.
The Judgment or a certified copy thereof of the Nyahururu Children's Case No. 14 of 2014 and delivered on the 26th August, 2014 has not been annexed to the application. It is the subject of this appeal and the application dated 27th October, 2014. The primary file from the Nyahururu Children's court is also not with this court.
While arguing the application for stay of execution of the Judgment and decree of the above Children's Case No. 14 of 2014 by the Nyahururu Children's court, both parties have referred to the said judgment extensively. In the absence of the said judgment and the Record of Appeal being furnished to this court or a certified copy thereof, it is very difficult for the court to make an informed and well reasoned ruling on the application. Being the primary pleading under attack in the appeal, it is necessary that a certified copy thereof be furnished to this court. I therefore defer making a substantive ruling on the application under review to await the Applicant/Appellant to furnish this court with a copy of the Judgment and the Record of appeal.
In the circumstances, I do direct that a certified copy of the Judgment in Chief Magistrate's Children's Court Case No. 14 of 2014 be provided to this court within 45 days of this ruling, together with the Record of appeal for a substantive Ruling to be prepared. In the meantime, the interim orders in place shall be extended for a further 45 days.
The case shall be mentioned on the 20th July, 2015 for further orders and directions.
Dated, signed and delivered at Nakuru this 28th day of May 2015
JANET MULWA
JUDGE
In the presence of:
No appearance - For Appellant
Beatrice Muiruri - For Respondent
Lina - Court clerk