Sana v Makokha (Civil Application E015 of 2022) [2024] KECA 741 (KLR) (21 June 2024) (Ruling)
- Court
- Court of Appeal
- Case number
- 741
- Citation
- [2024] KECA 741 (KLR)
- Decided
- 21 June 2024
The applicant has established that she has an arguable appeal, and the Court finds that what is sought to be stayed has already taken place and cannot be undone by the Court.
Facts
The applicant Esther Cherop Sana is dissatisfied with the judgment of J.W.W. Mongare J. of the High Court at Eldoret dated 24th January 2020, and has filed a notice of appeal against it. The applicant seeks an order restraining the respondent, David Lutta Musumbi Makokha, from evicting her from the property known as Eldoret Municipality Block 14/320.
Issues
- Whether the applicant's intended appeal is arguable
- Whether the intended appeal will be rendered nugatory if the application for stay of execution of the judgment is declined
Reasoning
The Court finds that the applicant's intended appeal is arguable as it concerns the question of jurisdiction of the learned Judge. The applicant's application for stay of execution is dismissed as the action of repossessing the suit property from the applicant was taken as a result of a valid judgment.
Outcome
The notice of motion dated 28th March 2023 is hereby dismissed.
Orders
- Order to stay execution of the judgment is dismissed
- Appropriate order is to let the costs abide the outcome of the intended appeal
Remedies
- Damages if the applicant's intended appeal eventually succeeds
Authorities cited
Legislation (5)
- Articles 50(1) and 159(2) of the Constitution
- Sections 3, 3A, 3B and 5 of the Appellate Jurisdiction Act
- Rules 47(1), (2), (4) and 49(1) of the Court of Appeal Rules
- Civil Procedure Rules
- Civil Procedure Act
Cases cited (1)
- Stanley Kangethe Kinyanjui v. Tony Keter & 5 others [2013] eKLR
Loading judgment…