[2021] KEHC 7911 (KLR)
The court exercised its discretion to grant a stay of execution of the decree in Mumias PMCC No. 188/2016 pending interpartes hearing of the application for leave to appeal out of time. The judge found that the temporary stay previously granted had lapsed, making execution imminent, and that denying interim relief...
Source-derived case information.
- Citation
- [2021] KEHC 7911 (KLR)
- Parties
- Applicant: Stephen Wesonga Makokha; Applicant: Moses Adepa; Respondent: Ignatius Opema Maliba (as the Legal and Personal Representative of the estate of Antony Gisiye - Deceased)
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E009 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Interim stay of execution granted pending interpartes hearing; application certified urgent and to be heard during recess.
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Urgent Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Wesonga Makokha
Applicant
Moses Adepa
Applicant
Ignatius Opema Maliba (as the Legal and Personal Representative of the estate of Antony Gisiye - Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to appeal out of time.
- 2 Whether a stay of execution of the decree should be granted pending the hearing and determination of the intended appeal.
- 3 Whether the application should be certified urgent and heard during the court recess.
Ratio Decidendi
The court exercised its discretion to grant a stay of execution of the decree in Mumias PMCC No. 188/2016 pending interpartes hearing of the application for leave to appeal out of time. The judge found that the temporary stay previously granted had lapsed, making execution imminent, and that denying interim relief could unjustly lock the applicants out of their right to appeal. The application was certified as urgent and allowed to be heard during the recess, with directions for service and interpartes hearing. The ruling was limited to interim relief pending full hearing of the application.
Court Disposition
Interim stay of execution granted pending interpartes hearing; application certified urgent and to be heard during recess.
Orders
- Leave granted for the applicants to be heard during the recess.
- Application certified as urgent for ex parte consideration in the first instance.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISC. CIVIL APPLICATION NO. E009 OF 2021
ORIGINATING FROM
KAKAMEGA MISC. CIVIL APPLICATION NO.E062 OF 2021
STEPHEN WESONGA MAKOKHA..................................1ST APPLICANT
MOSES ADEPA.................................................................2ND APPLICANT
VERSUS
IGNATIUS OPEMA MALIBA (as the Legal and Personal Representative
of theestate ofANTONY GISIYE-DECEASED...................RESPONDENT
RULING
1. I have considered the application dated 25/3/2021 under Certificate of Urgency.
2. I grant leave to the Applicants to be heard during the recess. I further certify the application as urgent for consideration exparte in the first instance.
3. On the prayer for interim stay of execution, I observe that the temporary stay granted by the trial court lapsed on 29/3/2021 hence the execution process is due.
4. The Applicants seek for leave to appeal out of time and for stay of execution of decree pending the lodging, hearing and determination of the intended appeal.
5. So as not to lock the applicants out of the judgment seat should they justify the delay in filing the appeal, I hereby exercise discretion and grant the applicants stay of execution of decree in Mumias PMCC No. 188/2016 pending interpartes hearing of the application dated 25/3/2021.
6. The Applicants’ counsel to serve the Respondent’s counsel forthwith for interpartes hearing before the High Court at Kakamega on 13/4/2021.
7. This file is closed and proceedings and this ruling to be certified and send to the Deputy Registrar Kakamega High Court forthwith.
8. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 30TH DAY OF MARCH 2021
R.E. ABURILI
JUDGE