[2014] KEHC 3816 (KLR)
The court recognized the applicant's right to pursue an appeal but also acknowledged the respondents' right to have the access road as decreed. The court found that the applicant's inability to obtain typed proceedings justified a temporary stay to facilitate the appeal process. However, the stay was limited to 90...
Source-derived case information.
- Citation
- [2014] KEHC 3816 (KLR)
- Parties
- Plaintiff: Shem Asirigwa Shipakali; Defendant: David Agaire Okoto; Defendant: Tom Asilivwa Mazinza; Defendant: Christopher Mudoga
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 128 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted for 90 days; proceedings to be typed and supplied to applicant; each party to bear own costs.
- Legal Topics
- Stay of Execution, Access Roads, Appeals Process, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shem Asirigwa Shipakali
Plaintiff
David Agaire Okoto
Defendant
Tom Asilivwa Mazinza
Defendant
Christopher Mudoga
Defendant
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 of the decree pending appeal.
- 2 Whether the respondents are entitled to enforcement of the decree establishing the access road.
- 3 Whether the applicant has demonstrated sufficient cause for the grant of stay.
Ratio Decidendi
The court recognized the applicant's right to pursue an appeal but also acknowledged the respondents' right to have the access road as decreed. The court found that the applicant's inability to obtain typed proceedings justified a temporary stay to facilitate the appeal process. However, the stay was limited to 90 days to balance the competing interests and prevent undue prejudice to the respondents. The court ordered that proceedings be typed and supplied to the applicant, and allowed the applicant to seek further stay from the Court of Appeal if necessary. Each party was ordered to bear their own costs.
Court Disposition
Stay of execution granted for 90 days; proceedings to be typed and supplied to applicant; each party to bear own costs.
Orders
- Stay of execution of the court decree granted for 90 days from the date of the ruling.
- Court proceedings to be typed and supplied to the applicant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL CASE NO. 128 OF 2010
SHEM ASIRIGWA SHIPAKALI ……………………………….… PLAINTIFF
V E R S U S
DAVID AGAIRE OKOTO ………………………………… 1ST DEFENDANT
TOM ASILIVWA MAZINZA ……………………………… 2ND DEFENDANT
CHRISTOPHER MUDOGA ………………………………. 3RD DEFENDANT
R U L I N G
The application dated 12. 7.2013 is seeking stay of execution of the decree herein pending the determination of the applicant’s appeal before the Court of appeal. The application is supported by the applicant’s affidavit sworn on the same date. The respondents filed a replying affidavit sworn by the 2nd respondent on the 25. 11. 2013.
Counsels for both parties relied on the application and the replying affidavit. The dispute herein involved an access road leading to the respondents’ respective plots. The court ordered that the road passing through the applicant’s land be established and some structures be removed. The applicant contends that he wishes to pursue an appeal to the Court of Appeal. The evidence showed that there was an access road as per the survey map. The applicant blocked the road when he combined another plot which he had purchased. I do recognize the applicant’s right to pursue the appeal but at the same time the respondents are entitled to have the access road as per the court decree. The applicant maintains that the proceedings have not been typed to enable him pursue his appeal. I do order that the proceedings herein be typed and supplied to the applicant. I do grant stay of execution of the court decree for 90 days from the date hereof and thereafter the orders shall lapse. The applicant shall be free to obtain similar stay orders from the Court of Appeal. Each party to meet his own costs.
Delivered, dated and signed at Kakamega this 10th day of July 2014
SAID J. CHITEMBWE
J U D G E