[2020] KEELC 1855 (KLR)
The court held that the unsigned Memorandum of Appeal annexed to the application for stay of execution rendered the appeal invalid in law. As a result, the application for stay of execution could not be properly founded on an invalid appeal. The court further found that this was not a mere technicality that could be...
Source-derived case information.
- Citation
- [2020] KEELC 1855 (KLR)
- Parties
- Appellant: Wycliffe Sikuku Walusaka; Respondent: Philip Kaita Wekesa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 40 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application struck out
- Legal Topics
- Stay of Execution, Memorandum of Appeal Requirements, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wycliffe Sikuku Walusaka
Appellant
Philip Kaita Wekesa
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether an unsigned Memorandum of Appeal can form the basis for an application for stay of execution pending appeal.
- 2 Whether the procedural defect of an unsigned Memorandum of Appeal is a mere technicality curable under Article 159(2)(d) of the Constitution.
Ratio Decidendi
The court held that the unsigned Memorandum of Appeal annexed to the application for stay of execution rendered the appeal invalid in law. As a result, the application for stay of execution could not be properly founded on an invalid appeal. The court further found that this was not a mere technicality that could be cured by Article 159(2)(d) of the Constitution, as it affected the jurisdiction of the court to entertain both the application and the appeal. Consequently, the court struck out the application to allow the applicant to regularize his pleadings, rather than dismissing it outright.
Court Disposition
application struck out
Orders
- The Notice of Motion dated 22nd June 2020 is struck out.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA
ELC APPEAL NO. 40 OF 2019.
WYCLIFFE SIKUKU WALUSAKA............................APPELLANT
VERSUS
PHILIP KAITA WEKESA.........................................RESPONDENT
29th June 2020
Coram: B. N. Olao JUDGE
(in chambers)
R U L I N G
Upon perusal of the Appellant’s Notice of Motion dated 22nd June 2020 and filed herein on 24th June 2020 seeking a stay of execution of the Judgment and decree in BUNGOMA CMCC NO 418 OF 2017 pending appeal, I notice that the Memorandum of Appeal annexed thereto and dated 14th November 2019 is not signed.
Order 42 Rule 6 of the Civil Procedure Rules on which the Notice of Motion is predicated requires that before an application such as this one is considered, the procedure for instituting an appeal from a Subordinate Court will have been complied with. Order 42 Rule 1(1) of the Civil Procedure Rules states that: -
“Every appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading.”
Since the Memorandum of Appeal is not signed, it has no validity in law. It cannot therefore be the basis upon which the Notice of Motion dated 22nd June 2020 can properly be founded.
I do not consider that lapse to be a mere technicality which can be cured by Article 159(2)(d) of the Constitution since it impacts on the jurisdiction of this Court to determine not only the application but even the appeal itself. I shall however not dismiss the application. I will only strike it out to enable the Applicant regularize his pleadings.
The Notice of Motion dated 22nd June 2020 is accordingly struck out.
Boaz N. Olao.
J U D G E
29th June 2020.
Ruling dated, signed and delivered at BUNGOMA this 29th day of June 2020 through electronic mail in view of the guidelines following the COVID – 19 pandemic.
Boaz N. Olao.
J U D G E
29th June 2020.