Sapai v Sapai & 3 others

2. 3. v. That the Honourable court do proceed to punish the 1st and 2nd Defendants/Respondents for disobedience of a court order. vi. That costs of the application be borne by the 1st and 2nd Respondents. The grounds in support of the application are interalia i. That the court delivered its judgment in favour of the plainti on 12th March 2024, the 1st and 2nd Defendants being aggrieved by the said judgment led a Notice of Appeal on 19th March 2024, and a Notice of Motion application dated 26th April 2024, which application was compromised by both parties where initially an interim stay of eviction order was issued on 03.07.2024, but no Record of Appeal has been led at the Court of Appeal, hence the orders of stay issued are in vain. ii. That the Plainti is eager to enjoy fruits of his judgment, and the Defendants have used the provincial administrations to coerce the plainti to accept another mode of judgment. iii. The Application is supported by the supporting adavit of the applicant who depones and reiterates the grounds in support of the application and has annexed annextures including Chief’s Summons, the Notice of Appeal, OB Statements and photographs. iv. On the strength of the grounds set out above and the supporting adavit the Applicant seeks orders set out at paragraph 1 of this Ruling. v. The Application is opposed by the Replying Adavit of the 2nd Defendant/Respondent. Mr. Ondieki Mosori who deposed the Replying Adavit with the authority of the 1st Defendant/ Respondent. vi. The 3rd and 4th Defendant/Respondent did not participate in the application. In opposition to the application, the 1st and 2nd Defendant/Respondent state that the stay of execution orders issued on 3rd of July 2024, was specic on the; i. Aspect of transfer of the property known as Transmara/Meguara/132 pending hearing and determination of the Appeal before the Court of Appeal. ii. Plainti given access to the property not in occupation of the 1st Defendant for purposes of Agricultural farming only and not to develop any permanent structures and not occupation by any other third parties. iii. The 1st Defendant to use the portion of Transmara/Meguara/132 which they occupied before the judgment but not to erect any permanent structures as well as any burial pending determination of the Appeal. iv. The 2nd Defendant, the registered owner thereof, was required not to transfer charge, lease and/ or interfere legal regal registration of the property pending haring and determination of the Appeal. 4. That there is a Notice of Appeal that was led on 18th March 2024 and proceedings were requested for purposes of ling the Record of Appeal, the property had not been transferred to any 3rd party as per the search. 5. That the Notice of Appeal upon which stay of execution orders was granted is still alive and there are no issues which have arisen to warrant setting aside of the stay orders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18722/eng@2025-02-20 2

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6. Partis were directed to le on the written submissions on the application, a Ruling reserved for today. The Applicants had not led their submissions as at 17.12.2024 when the Ruling date was reserved, and at the time of the Ruling they had still not led their submissions hence the same were not considered. 7. The 1st and 2nd Respondents submit that the application is not merited as a Notice of Appeal was led before the Court of Appeal. 8. In terms of Rule 84 of the Court of Appeal Rules and that the issues of contempt were not satisfactorily proven to warrant the court to set aside the stay of execution orders. 9. The only issue for determination is whether the application is merited. Analysis and Determination 10. It is the Applicants case that there is no appeal pending before the Court of Appeal to enable the Respondents continue enjoying the stay of execution orders issued herein. The Respondent submits that the Notice of Appeal dated 18th March 2024 is still valid and alive under Rule 84 of the Court of Appeal Rules. A determination of this issue shall also determine the application. 11. Once a Notice of Appeal is lodged at the superior Court of Appeal, essentially the parties invoke the jurisdiction of the said court, so as to make any determination in relation to the validity or otherwise of the appeal and on whether or not an appeal exists that determination can only be made by the Court of Appeal in accordance with its Rules. 12. In so far as the present application seeks settling aside of the stay of execution orders issued herein on the basis that there is no appeal before the Court of Appeal, the court having found that it cannot interrogate the validity or otherwise of a Notice of Appeal the court nds that the applicant ought to have moved led the requisite application before the Court of Appeal and not before this court as the trial court, as was held in the case of Issa Shekue Shali v Buscar Limited (2019) eKLR where the court held interalia “ whereas it is not in the jurisdiction of the trial court to rule on the formal validity of the notice of appeal…” 13. The Consequence is that the application as led and orders sought cannot issue until the validity or otherwise of the Appeal is determined at the court of Appeal and accordingly the court rejects the invitation to dwell on the validity of the Appeal and to consequentially set aside the orders of stay of execution and the orders sought herein and thus strikes out the application dated 19th October 2024 with costs. DATED AND DELIVERED AT KILGORIS THIS 20TH DAY FEBRUARY OF 2025. HON. M. N. MWANYALE JUDGE In the presence of: Ms. Ochwal for the 1st and 2nd Respondent. Mr. Onsarigo for the Applicant. CA - Emmanuel/Sylvia. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18722/eng@2025-02-20 3

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