[2017] KECA 41 (KLR)
The Court determined that the application for stay of execution could not proceed to hearing due to non-compliance with the Court's Practice Rules, specifically the omission of a case digest and the absence of a page from the impugned ruling. The Court exercised its discretion to grant the applicant leave to...
Source-derived case information.
- Citation
- [2017] KECA 41 (KLR)
- Parties
- Applicant: Tungo Totona; Applicant: Ledema Totuna; Applicant: Ronald Totona; Respondent: Priscilla Jeruto Kisoso
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 41 of 2017
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Hearing of the application adjourned; leave granted to regularize application; costs in the application.
- Legal Topics
- Stay of Execution, Appeals Process, Court Practice Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tungo Totona
Applicant
Ledema Totuna
Applicant
Ronald Totona
Applicant
Priscilla Jeruto Kisoso
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution can proceed in the absence of compliance with court practice rules.
- 2 Whether leave should be granted to regularize the application and file missing documents.
Ratio Decidendi
The Court determined that the application for stay of execution could not proceed to hearing due to non-compliance with the Court's Practice Rules, specifically the omission of a case digest and the absence of a page from the impugned ruling. The Court exercised its discretion to grant the applicant leave to regularize the application by filing the missing page and providing the required case digest. The affidavit filed in reply to the respondent's affidavit was deemed as duly filed. The hearing of the application was adjourned to a date to be fixed on priority, and costs for the day were ordered to be in the application.
Court Disposition
Hearing of the application adjourned; leave granted to regularize application; costs in the application.
Orders
- Hearing of the application is adjourned to a date to be fixed on priority.
- Applicant granted leave to file and amend the application in reply; the filed reply is deemed as duly filed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAKURU
(CORAM G.B.M. KARIUKI, SICHALE & KANTAI, JJ.A
CIVIL APPLICATION NYR. NO. 41 OF 2017
BETWEEN
TUNGO TOTONA.........................................1ST APPLICANT
LEDEMA TOTUNA.....................................2ND APPLICANT
RONALD TOTONA.....................................3RD APPLICANT
AND
PRISCILLA JERUTO KISOSO......................RESPONDENT
(Being an application for stay of execution of the ruling, order and injunction pending the hearing and determination of an intended appeal from the ruling and order of the Environment and Land Court of Kenya at Nakuru (Munyao, J) Dated 16h March, 2017
in
E.L.R.C. NO. 20 OF 2016)
**********************
ORDER OF THE COURT
The Notice of Motion now before us dated 25th April, 2017 premised on Rule 5(2)(b)of this Court’s Rules cannot proceed to hearing because Mr. Arusei, the learned counsel for the applicant who is in Court has not complied with this Court’s Practice Rules in that he has omitted case digest in his list of authorities that span to 500 pages. He has sought time to do so.
Secondly, page 2 of the impugned ruling is missing and he states that he needs to obtain it from the Environment and Land Court. Mr. Arusei has also sought leave to have the affidavit filed and send by him this morning, in reply to the respondent’s affidavit deemed as duly filed.
Mr. Karanja does not object to the application for leave but he is unable to wait beyond noon for the hearing of the application by which time Mr. Arusei indicates he will have remedied the anomalies.
In the light of the above we adjourn the hearing of the application to a date to be fixed on priority. We grant the applicant leave to file and amend the application in reply and the filed reply is hereby deemed as duly filed.
The applicant shall regularize the application by filing the missing page of the impugned ruling and provide case digest to his list of authorities.
The costs for today shall be in the application.
Dated at Nakuru on this 29th day of May, 2017.
G.B.M. KARIUKI
……………………………
JUDGE OF APPEAL
F. SICHALE
……………………………
JUDGE OF APPEAL
S. Ole KANTAI
……………………………
JUDGE OF APPEAL