ALBERT AMIMO VS SUSAN AGOLA AND COUNTY GOVERNMENT OF KISUMU AND 1 Others

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

CIVIL APPEAL NO.60 OF 2021

ALBERT OMINO………….……………………….……. APPELLANT

AND

SUSAN AGOLA……….……………………………..1^ST RESPONDENT

COUNTY GOVERNMENT OF KISUMU………..2^ND RESPONDENT

MARK MUHAMBE EHETE……..…………..…..3^RD RESPONDENT

(Being an appeal from the Judgement and decree of Hon C. Yalwala Senior Principle Magistrate, Maseno delivered on 7^th July 2021 in the original Maseno PM ELC NO. 64 OF 2018)

RULING

1. The application before court for determination is the Notice of motion dated 6^th May 2024 brought by the appellant pursuant to the provisions of Order 21 Rule 8, Order 42 Rule 6 (1), (2) and Order 51 Rules 1 and 3 Civil Procedure Rules and sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The application seeks for an order of stay of execution and/or enforcement of the judgement of this court dated 5^th October 2023 pending hearing and determination of the applicant’s appeal to the Court of appeal.
2. The application was not opposed. Affidavit of Service filed by the applicant sworn by Linda Oduor on 28/5/2024 shows that the on the same date (28/5/2024) Counsel for the Respondent were served with the application, hearing Notice and directions of the court given on 25/5/2024. The Respondent neither responded to the application nor attended court for hearing thereof.
3. Counsel for the applicant urged the court to allow the application as it was unopposed. Counsel relied on the grounds of the application contained in the application and Supporting Affidavit.
4. I have considered the application. The orders in the judgement sought to be appealed against are for dismissal of the appeal and an award of costs in favour of the 1^st and 3^rd Respondents. Hence the only aspect of the judgement of that is capable of execution is the recovery of costs. As at the date hereof there is no appeal pending before the Court of Appeal as the Notice of Appeal was filed out of time. I find that the grounds for grant of an order of stay of execution pending appeal to the Court of Appeal have not been demonstrated.
5. The application is hereby declined. No order as to costs.

Orders accordingly.

Ruling dated and signed at Kisumu and read this 5^th day of June, 2024 virtually through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:                   

Maureen: Court Assistant.

…………. for the Appellant/Applicant.                  

No appearance for the Respondents