[2016] KEELC 1071 (KLR)
The court found that the applicant was essentially seeking to stay execution and set aside the bill of costs, reliefs which had already been sought and dismissed in a previous ruling. The current application, though framed as a constitutional challenge, did not demonstrate any violation or likely violation of...
Source-derived case information.
- Citation
- [2016] KEELC 1071 (KLR)
- Parties
- Plaintiff: Zipporah C. Maiyo; Plaintiff: Rael Chepngetich; Plaintiff: Lilian Cheptanui Kemei; Defendant: Tito Kiplimo Chepkwony; Defendant: Silas Kiptanui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 59 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside Notice to Show Cause
- Outcome
- application dismissed with costs to the respondents
- Judges
- EO Obaga
- Legal Topics
- Notice to Show Cause, Stay of Execution, Civil Jail, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah C. Maiyo
Plaintiff
Rael Chepngetich
Plaintiff
Lilian Cheptanui Kemei
Plaintiff
Tito Kiplimo Chepkwony
Defendant
Silas Kiptanui
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside Notice to Show Cause
Legal Issues
- 1 Whether the notice to show cause is unconstitutional.
- 2 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the applicant was essentially seeking to stay execution and set aside the bill of costs, reliefs which had already been sought and dismissed in a previous ruling. The current application, though framed as a constitutional challenge, did not demonstrate any violation or likely violation of constitutional rights. The notice to show cause was a lawful and proper procedure for execution of the decree. The application was therefore an abuse of the court process and could not be allowed.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 31.8.2015 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 59 OF 2011
ZIPPORAH C. MAIYO
RAEL CHEPNGETICH.........................................................................PLAINTIFFS
LILIAN CHEPTANUI KEMEI
VERSUS
TITO KIPLIMO CHEPKWONY.................................................1ST DEFENDANT
SILAS KIPTANUI.......................................................................2ND DEFENDANT
R U L I N G
1. This is a ruling in respect of a notice of motion dated 31. 8.2015 which is expressed to be brought under the provisions of Article 2 (5 and 6), 10, 23 (a) (d), 24 (1) (d) and (e), 28, 29 and 50 of the constitution. The application seeks to have the notice to show cause herein declared unconstitutional and the same be set aside or lifted. The application is supported by the supporting affidavit of Zipporah Maiyo sworn on 31. 8.2015.
2. The applicant contends that the respondents intend to put her in civil jail with her two sisters and that unless the notice to show cause is stayed or lifted, she and her sisters will be put in civil jail and they will thus be embarrassed.
3. The application is opposed by the respondents based on grounds of opposition filed in court on 30. 9.2015. The respondents contend that the application is an abuse of the process of the court which is seeking stay of execution which stay has already been determined by the court.
4. The applicant herein had brought an application in which she wanted stay of execution pending appeal and setting aside the bill of costs which had been taxed. This application was heard and the same was dismissed in a ruling delivered on 26. 5.2015. The respondents then proceeded to file an application to show cause why the applicant and her sisters could not be committed to civil jail. This is what prompted the applicant to file the current motion.
5. I have gone through the application and the only issue for determination is whether the notice to show cause is unconstitutional. The applicant is seeking to obtain what had been rejected vide ruling of 26. 5.2015. She had wanted the bill of costs set aside. This was rejected. The respondents then proceeded to file a notice to show cause which is proper in law and provided for. Instead of the plaintiff/applicant coming to court to show cause, she came and filed the present application clothed under the provisions of the constitution but essentially seeking to stay what the court had already rejected. The applicant has not demonstrated in what manner her constitutional rights have been violated or likely to be violated. The application is a clear abuse of the process of court. It cannot be allowed. The same is hereby dismissed with costs to the respondents.
It is so ordered.
Dated, signed and delivered at Kitale on this 29th day of February,2016.
E. OBAGA
JUDGE.
In the presence of Mr. Bororio for respondents
Court Assistant - Isabellah.
E. OBAGA
JUDGE
29/2/2016