[2024] KEELC 13289 (KLR)

[2024] KEELC 13289 (KLR)

The court found that the order dismissing the applicant's suit was a negative order and therefore incapable of being stayed under Order 42 Rule 6 of the Civil Procedure Rules. The only executable aspect was the award of costs, which had not yet been assessed. On the issue of leave to appeal out of time, the court noted that Section 79G of the Civil Procedure Act permits extension of time if the applicant was not supplied with certified copies of the judgment and proceedings within the statutory period. However, the applicant failed to annex evidence of having requested such documents, making it difficult for the court to assess whether the delay was excusable. Despite this, the court...

Citation
[2024] KEELC 13289 (KLR)
Parties
Applicant: Martin N Wasike (Suing on Behalf of Muju PEFA Church); Respondent: Shadrack Aradi Mugira and others
Court
Environment and Land Court
Court Station
Environment and Land Court at Bungoma
Jurisdiction
Kenya
Judgment Date
21 November 2024
Case Number
Environment and Land Miscellaneous Application E016 of 2024
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Outcome
application partially allowed
Judges
EC Cherono
Legal Topics
Stay of Execution, Leave to Appeal Out of Time, Negative Orders, Locus Standi, Costs Award
Source Language
English
Civil Procedure Land and Property Stay of Execution Leave to Appeal Out of Time Negative Orders Locus Standi Costs Award

Case Brief

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Parties

Martin N Wasike (Suing on Behalf of Muju PEFA Church)

Applicant

Shadrack Aradi Mugira and others

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time

Legal Issues

  1. 1 Whether the applicant is entitled to a stay of execution of the judgment and decree issued by the trial magistrate.
  2. 2 Whether the applicant should be granted leave to file an appeal out of time against the judgment of the magistrate's court.
  3. 3 Whether the order of dismissal by the trial court is capable of being stayed.

Ratio Decidendi

The court found that the order dismissing the applicant's suit was a negative order and therefore incapable of being stayed under Order 42 Rule 6 of the Civil Procedure Rules. The only executable aspect was the award of costs, which had not yet been assessed. On the issue of leave to appeal out of time, the court noted that Section 79G of the Civil Procedure Act permits extension of time if the applicant was not supplied with certified copies of the judgment and proceedings within the statutory period. However, the applicant failed to annex evidence of having requested such documents, making it difficult for the court to assess whether the delay was excusable. Despite this, the court...

Court Disposition

application partially allowed

Orders

  • Prayer for stay of execution is declined.
  • Applicant is granted leave to file appeal against the judgment of Hon. Viola Yator, PM delivered on 24/07/2024 within 7 days from the date of this ruling.