[2020] KEELC 3024 (KLR)
The court found that the application for stay of execution was identical to a previous application that had already been determined and dismissed. Entertaining the same application would amount to sitting on appeal over its own decision, which is not permissible unless the matter is brought under review. The court...
Source-derived case information.
- Citation
- [2020] KEELC 3024 (KLR)
- Parties
- Plaintiff: William Macharia Maina; Plaintiff: John Muthui Maina; Defendant: Chebutei Koin & Another; Interested Party: Kibiwott Yator Kuryases & 8 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 172 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Res Judicata, Functus Officio, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Macharia Maina
Plaintiff
John Muthui Maina
Plaintiff
Chebutei Koin & Another
Defendant
Kibiwott Yator Kuryases & 8 Others
Interested Party
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution is res judicata due to a previous similar application having been determined.
- 2 Whether the court is functus officio and thus barred from entertaining the same application for stay of execution.
- 3 Whether the applicant is abusing the court process by seeking similar orders after dismissal of a previous application.
Ratio Decidendi
The court found that the application for stay of execution was identical to a previous application that had already been determined and dismissed. Entertaining the same application would amount to sitting on appeal over its own decision, which is not permissible unless the matter is brought under review. The court held that it was functus officio and that the application was res judicata under Section 7 of the Civil Procedure Act. The court further noted that the repeated filing of similar applications constitutes an abuse of the court process. Consequently, the application was dismissed with costs to the plaintiffs and interested parties.
Court Disposition
application dismissed with costs
Orders
- The application dated 26th August 2019 is dismissed with costs to the plaintiffs and interested parties.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT ELDORET
E & L CASE NO. 172 OF 2014
WILLIAM MACHARIA MAINA................................................1ST PLAINTIFF
JOHN MUTHUI MAINA.............................................................2ND PLAINTIFF
VERSUS
CHEBUTEI KOIN & ANOTHER...................................................DEFENDANT
AND
KIBIWOTT YATOR KURYASES & 8 OTHERS.......INTERESTED PARTIES
RULING
This ruling is in respect of an application by the defendant/applicant dated 26th August, 2019 seeking for the following orders:
a)That pending the inter parties hearing of this application there be stay of execution of the judgment, decree and all consequential orders herein.
b)That at the inter parties hearing hereof the court be pleased to grant a stay of execution of the judgment, decree and all consequential orders hearing until the hearing and determination of the applicant’s intended appeal to the Court of Appeal against the court’s ruling delivered on 8th August 2019.
Counsel submitted that the applicant has preferred an appeal against the ruling dated 8th August 2019 dismissing the application dated 22nd March 2019. It was counsel’s submissions that the intended appeal raises triable issues and shall be rendered nugatory in the event that the eviction orders are executed.
The respondents and the interested parties opposed the application through the grounds of opposition that the application though brought during the vacation has not complied with the provisions of the Judicature Act and is therefore a non-starter.
Counsel also submitted that the applicants had sought similar orders vide an application dated 22nd March /2019 which renders the current application res judicata against Section 7 of the Civil Procedure Act. They therefore urged the court to dismiss the application with costs.
ANALYSIS AND DETERMINATION
This is an application seeking for stay of execution of judgment, decree and all consequential orders. It should be noted that the applicant had filed a similar application dated 22nd March 2019 which was argued exhaustively and a ruling delivered on 8th August 2019. The application sought for the following orders
a) Spent.
b) A stay of execution of the judgment, decree and all consequential orders thereof pending the inter-partes hearing;
c) The ex-parte judgment entered against the defendants/applicants be set aside at the inter partes hearing and the suit be set down for hearing on merits;
d) The costs be provided for.
These are the same orders that the applicant is seeking for. This in effect means that the applicant wants the court to hear the same application with hopes of a different outcome. This would amount to abuse of court and further abuse of discretion.
The applicant being aggrieved by the ruling of the court, he ought to move to the next court to exercise his right of appeal. That is why there are hierarchy of courts. Siting on appeal on my own ruling or judgment when it is not a review under Order 45 is an abuse of court process. The court is functus officio in this matter and will not render another ruling on the application for stay of execution.
Having said that I find that the application is misplaced and therefore dismissed with costs to the plaintiffs and the interested parties.
DATED and DELIVERED at ELDORET this 23RD DAY OF APRIL, 2020
M. A. ODENY
JUDGE