[2020] KECA 332 (KLR)
The Court of Appeal found that the applicant had demonstrated an arguable appeal, particularly on the issue of whether the trial court erred in failing to consider the application to set aside ex-parte proceedings and grant a hearing. The Court further held that unless a stay of execution was granted, the intended...
Source-derived case information.
- Citation
- [2020] KECA 332 (KLR)
- Parties
- Applicant: Yusuf Mwero Mwazengele; Applicant: The Hon. Attorney General; Applicant: The Registrar of Titles, Mombasa; Respondent: Benson Baya Yaa (Suing as the Administrator of Omar Bakari Yaa, Deceased)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 186 of 2020
- Procedural Posture
- Civil Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- MA Warsame, DK Musinga, F Sichale
- Legal Topics
- Stay of Execution, Appeals Process, Ex Parte Proceedings, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yusuf Mwero Mwazengele
Applicant
The Hon. Attorney General
Applicant
The Registrar of Titles, Mombasa
Applicant
Benson Baya Yaa (Suing as the Administrator of Omar Bakari Yaa, Deceased)
Respondent
Procedural Posture
Civil Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal warranting a stay of execution of the judgment.
- 2 Whether the intended appeal would be rendered nugatory if the stay is not granted.
- 3 Whether the trial court erred in failing to consider the applicant's application to set aside ex-parte proceedings.
Ratio Decidendi
The Court of Appeal found that the applicant had demonstrated an arguable appeal, particularly on the issue of whether the trial court erred in failing to consider the application to set aside ex-parte proceedings and grant a hearing. The Court further held that unless a stay of execution was granted, the intended appeal would be rendered nugatory because the suit land could be transferred or otherwise dealt with, defeating the purpose of the appeal. Accordingly, the Court allowed the application for stay, restraining both parties from disposing of, leasing, or charging the suit land pending the determination of the intended appeal.
Court Disposition
Application for stay of execution allowed.
Orders
- The Notice of Motion dated 29th June 2020 is allowed.
- Neither the applicant nor the respondent shall dispose of, lease, or charge Plot No. 80 Mida pending hearing and determination of the intended appeal.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT MALINDI
(CORAM: WARSAME, MUSINGA & SICHALE, JJ.A.)
CIVIL APPLICATION NO. 186 OF 2020
BETWEEN
YUSUF MWERO MWAZENGELE.................................1STAPPLICANT
THE HON.ATTORNEY GENERAL................................2NDAPPLICANT
THE REGISTRAR OF TITLES, MOMBASA.................3RDAPPLICANT
AND
BENSON BAYA YAA (Suing as the Administrator
of OMAR BAKARI YAA (Deceased)……….…….…….....RESPONDENT
(Being an application for stay against the Judgment of the Environment and Land Court of Kenya at Malindi (Olola, J.) dated 27th May 2020
in
E.L.C Suit No. 93 of 2017. )
**************************
RULING OF THE COURT
1. UPONperusing the Notice of Motion dated 29th June 2020 byYusuf Mwero Mwazengele, the 1st applicant, brought underrules 5(2)(b)and41of theCourt of Appeal Rules, where the 1st applicant is seeking stay of execution of the judgment issued by Olola, J. on 27th May 2020 and all other subsequentorders pending hearing and determination of an intended appeal; and
2. UPONperusing the affidavit of the 1st applicant sworn on 29th June 2020 in support of the application which has not been responded to by the respondent, despite service of the application and a hearing notice upon the respondent’s advocates, M/S K. Lughanje & Company Advocates; and
3. UPONperusing the 1st applicant’s advocate’s submissions where he has stated, inter alia, that the 1st applicant is the registered owner of the property known as Plot No. 80 Mida; that his ownership was challenged by the respondent before the trial court; that the 1st applicant filed a statement of defence; that the hearing was done in the absence of the 1st applicant due to his advocate’s mistake; that the trial court failed to deal with the 1st applicant’s application dated 26th June 2019 seeking to set aside the ex-parte proceedings and grant him an opportunity to be heard; that the trial court ordered the suit land be transferred to the respondent; that the 1st applicant has filed a notice of appeal against the judgment; and that unless the orders sought are granted the judgment/decree shall be executed; and
4. HAVINGconsidered the principles that guide this Court in determining applications under rule 5(2)(b) applications as summarized in Stanley Kangethe v Tony Ketter & Others [2013] eKLR, and noting that the applicant has demonstrated that it has an arguable appeal and unless the orders sought are granted the intended appeal shall be rendered nugatory; having reached this conclusion, we make the following orders:-
i. The Notice of Motion dated 29th June 2020 is hereby allowed.
ii. The suit land, being Plot No. 80 Mida, situated at Mida Creek, shall not be disposed of, leased, or charged by either the 1st applicant or the respondent pending hearing and determination of the intended appeal.
iii. The costs of this application shall abide the outcome of the intended appeal.
Dated and delivered at Nairobi this 2ndday of October, 2020.
M. WARSAME
……………..………..
JUDGE OF APPEAL
D. K. MUSINGA
……………………..
JUDGE OF APPEAL
F. SICHALE
……………..………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original
Signed
DEPUTY REGISTRAR