[2022] KEHC 13046 (KLR)
The court found that the application was incompetent because the prayers sought by the appellant for stay of execution and stay of proceedings related to cases (Kiambu CMCC No 71 of 2019 and Kiambu CMCC No 352 of 2021) that were not the subject of the present appeal, which was against Kiambu Chief Magistrate’s Court...
Source-derived case information.
- Citation
- [2022] KEHC 13046 (KLR)
- Parties
- Appellant: Francis Machira Wanjau; Respondent: Esther Wanjiku Wanjiru (Suing as the legal representative of the estate of Liam Mbugua (deceased))
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E131 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Appeals Process, Competency of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Machira Wanjau
Appellant
Esther Wanjiku Wanjiru (Suing as the legal representative of the estate of Liam Mbugua (deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution relates to the correct case under appeal.
- 2 Whether the application is competent for failing to seek stay of execution in the relevant case.
Ratio Decidendi
The court found that the application was incompetent because the prayers sought by the appellant for stay of execution and stay of proceedings related to cases (Kiambu CMCC No 71 of 2019 and Kiambu CMCC No 352 of 2021) that were not the subject of the present appeal, which was against Kiambu Chief Magistrate’s Court Civil Case No 91 of 2019. As such, the application failed to seek stay of execution in the relevant case and had no relationship to the appeal before the court. The court therefore dismissed the application with costs and vacated the interim stay previously granted.
Court Disposition
application dismissed
Orders
- The notice of motion dated October 1, 2021 is dismissed with costs.
- The interim stay granted on October 7, 2021 is vacated.
Full Case Text
Judgment text and source record
22 paragraphs
Wanjau v Wanjiru (Suing as the legal representative of the estate of Liam Mbugua (deceased)) (Civil Appeal E131 of 2021) [2022] KEHC 13046 (KLR) (22 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13046 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal E131 of 2021
MM Kasango, J
September 22, 2022
Between
Francis Machira Wanjau
Appellant
and
Esther Wanjiku Wanjiru
Respondent
Suing as the legal representative of the estate of Liam Mbugua (deceased)
(Being an application for stay of execution of against the judgment of the Chief Magistrates Court at Kiambu (W. Rading, SRM) in the CMC Suit No. 91 of 2019 dated 1st July, 2021)
Ruling
1. Francis Machira Wanjau (Francis) filed this appeal seeking to appeal against Kiambu Chief Magistrate’s Court Civil Suit No 91 of 2019. Francis has filed a notice of motion application dated October 1, 2021. He seeks the following prayers:-1. Spent2. That this honourable court be pleased to order a stay of execution of the judgment/decree issued on July 1, 2021 by honourable W Rading Senior Resident Magistrate in Kiambu CMCC No 71 of 2019 pending the hearing and determination of this application.3. That this honourable court be pleased to order a stay of execution of the judgment/decree issued on July 1, 2021 by Honourable W Rading Senior Resident Magistrate in Kiambu CMCC No 71 of 2019 pending the hearing and determination of this appeal.4. That this honourable court be pleased to order a stay of further proceedings of the declaratory suit being Kiambu CMCC No 352 of 2021 pending the hearing and determination of this application.5. That this honourable court be pleased to order a stay of further proceedings of the declaratory suit being Kiambu CMCC No 352 of 2021 pending the hearing and determination of this appeal.6. That the application be heard inter parties on such date and time as this honourable court may direct.7. That the costs of this application abide the outcome of the appeal
2. It does not take much imagination to notice that the above prayers above have no relationship to this appeal, which is an appeal against Kiambu Chief Magistrate’s Court Civil Case No 91 of 2019.
3. This application is incompetent for failing to seek stay of execution pending the hearing of the appeal in the case in question, that is, Kiambu Chief Magistrate’s Court Civil Case No 91 of 2019.
4. Without further ado, I hereby dismiss the notice of motion dated October 1, 2021 with costs. The interim stay granted on October 7, 2021 is hereby vacated.
5. A mention date will be given for appellant to confirm which case file he wishes to appeal against.
RULING DATED AND DELIVERED AT KIAMBU THIS 22NDDAY OF SEPTEMBER, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor appellant : - Ms Wairimu HB Mr MulingeFor respondents : - Mr NjugunaRuling delivered virtually.MARY KASANGOJUDGE