At the centre of the appeal herein and Notice of Motion dated 27th February, 2025, the subject of this ruling, is a parcel of land known as KAKAMEGA/SHIRU/1631 registered in the name of the 1st Respondent and which, according to the Applicant, is family land where the matrimonial home of the Applicant and the 1st Respondent is situate.
The Applicant’s case is that the said parcel of land is threatened with sale by public auction in execution of a decree in KISUMU CMCC NO.84 OF 2020 and hence seeks for an order of temporary injunction to restrain the 2nd and 3rd Respondents, their agents and/or assigns from disposing of, alienating, advertising for sale and/or in any manner interfering with the Applicant’s possession and use of the land pending hearing and determination of the appeal herein.
It is clear from the record that the appeal is not against the decree in KISUMU CMCC NO.84 OF 2020. The appeal, as can be gathered from the Memorandum of Appeal, is against the Ruling in a different case namely HAMISI MC ELC NO. E008 OF 2024 dated 13th February, 2025. Perusal of the ruling a copy of which is attached to the Application shows that it was in respect of an application similar as the orders sought herein namely; for orders of temporary injunction and that the trial court declined to grant the orders citing abuse of court process.
In the appeal, this court will be deciding whether or not the trial court erred in declining to grant the order of temporary injunction sought in the lower court.
To allow the application is tantamount to allowing the appeal before the same is heard.
Further, the application was brought under Order 42 Rule 6 which provides for stay of execution of court judgements, decree and orders pending appeal. Even if the court were to consider the application before it as an application for stay of execution, the stay can only be application to and/or in relation to the Ruling appealed against. The Ruling appealed against was an order of dismissal of the application before the trial court. There is no order in the Ruling that is capable of execution hence nothing to be stayed.
It is clear that the Applicant’s grievances concern case No.84 of 2020. The proceedings herein do not relate to case No. 84 of 2020 yet if the orders if granted will occasion stay of execution in No. 84 of 2020.
No reason has been given why the applicant has not sought joinder in the said case so as to protect her interest in the suit land.
I find that the application lacks merit. The application is hereby dismissed. No orders as to costs.
Orders accordingly.
Ruling, dated and signed at Vihiga, read virtually this 4th day of March, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Mureen- Court Assistant.
Chesire h/b Namenge for the Appellant.
N/ A for the Respondent.