1. The Applicants seek a stay of execution of the judgment delivered on 2nd May 2024 vide their application dated 14/6/2024.
2. The basis of the stay application is founded on the face of the application and the grounds as well as the supporting affidavit. In the supporting affidavit, the Applicant has annexed a Memorandum of Appeal as well as a Notice of Appeal dated 20th May 2024, but the same was filed on 14th June 2024 as per the Court stamp.
3. When the matter was filed under certificate of urgency the Court granted directions as to filing of a response as well as submissions and re-served the ruling for 19/9/2024. Parties were to appear before the Deputy Registrar to confirm filing of submissions.
4. There is no response filed by the Respondent as well as no submissions filed by the Respondents
5. Even though the application is largely unopposed the same shall be subjected to a merit review so as to see whether the same meets the threshold of grant of s stay of execution application.
ISSUES FOR DETERMINATION: -
6. From the application, the issue for determination are; -
i. Whether there exists is a valid appeal before the Court of Appeal
ii. Whether the application is merited.
7. As noted elsewhere, the Applicant seeks a stay of execution pending appeal. The judgment he seeks to stay was delivered on 2nd May 2024. The Applicant had to lodge an appeal by way of a Notice of Appeal within 14 days of delivery of the decision, in accordance with the Rule 77 (2) of the Court of Appeal Rules.
8. The Notice of Appeal herein is dated 20th May 2024 out of time and was filed on 14th June 2024, without leave of Court for enlargement of time as it ought to be.
9. In an application for stay pf execution pending appeal, the Courts jurisdiction is exercisable once a complainant Notice of Appeal has been filed and served on the Respondents.
10. The above is in tandem with the decision of the Supreme Court in the case of Itolondo vs Attorney General & 9 others (Application 3 (E005) of 2021 in KESC 44 KLR 16 July 2021 whereat the Court noted interalia, “39. On the second issue, whether petition No. E004/2021 is proper to justify a stay of the Court of Appeal of Appeals Order on costs……. In the absence of a substantive appeal on record, we are unable to grant the orders of stay of execution of the order on costs on Civil Appeal No. 120 as sought.”
11. Having found that there is no valid Notice of Appeal, as the intended Appeal was filed out of time without leave, there is thus no appeal upon which a stay of execution application can be based on, and the application herein is a non-starter and it ought to be dismissed.
12. The upshot is that although the application is not opposed, the Court having found no existence of a valid Notice of Appeal, shall not entertain the merits or otherwise of the application which stands dismissed with no orders as to costs.
Ruling, Dated and Delivered at Kapsabet this 19th day of September, 2024.
In the presence of;
1. Mr. Korir for the Respondent
2. No appearance for Mr. Songok for the Applicant
2. The basis of the stay application is founded on the face of the application and the grounds as well as the supporting affidavit. In the supporting affidavit, the Applicant has annexed a Memorandum of Appeal as well as a Notice of Appeal dated 20th May 2024, but the same was filed on 14th June 2024 as per the Court stamp.
3. When the matter was filed under certificate of urgency the Court granted directions as to filing of a response as well as submissions and re-served the ruling for 19/9/2024. Parties were to appear before the Deputy Registrar to confirm filing of submissions.
4. There is no response filed by the Respondent as well as no submissions filed by the Respondents
5. Even though the application is largely unopposed the same shall be subjected to a merit review so as to see whether the same meets the threshold of grant of s stay of execution application.
ISSUES FOR DETERMINATION: -
6. From the application, the issue for determination are; -
i. Whether there exists is a valid appeal before the Court of Appeal
ii. Whether the application is merited.
7. As noted elsewhere, the Applicant seeks a stay of execution pending appeal. The judgment he seeks to stay was delivered on 2nd May 2024. The Applicant had to lodge an appeal by way of a Notice of Appeal within 14 days of delivery of the decision, in accordance with the Rule 77 (2) of the Court of Appeal Rules.
8. The Notice of Appeal herein is dated 20th May 2024 out of time and was filed on 14th June 2024, without leave of Court for enlargement of time as it ought to be.
9. In an application for stay pf execution pending appeal, the Courts jurisdiction is exercisable once a complainant Notice of Appeal has been filed and served on the Respondents.
10. The above is in tandem with the decision of the Supreme Court in the case of Itolondo vs Attorney General & 9 others (Application 3 (E005) of 2021 in KESC 44 KLR 16 July 2021 whereat the Court noted interalia, “39. On the second issue, whether petition No. E004/2021 is proper to justify a stay of the Court of Appeal of Appeals Order on costs……. In the absence of a substantive appeal on record, we are unable to grant the orders of stay of execution of the order on costs on Civil Appeal No. 120 as sought.”
11. Having found that there is no valid Notice of Appeal, as the intended Appeal was filed out of time without leave, there is thus no appeal upon which a stay of execution application can be based on, and the application herein is a non-starter and it ought to be dismissed.
12. The upshot is that although the application is not opposed, the Court having found no existence of a valid Notice of Appeal, shall not entertain the merits or otherwise of the application which stands dismissed with no orders as to costs.
Ruling, Dated and Delivered at Kapsabet this 19th day of September, 2024.
In the presence of;
1. Mr. Korir for the Respondent
2. No appearance for Mr. Songok for the Applicant