Jameny Mudaki Asava v Brown Oteng Asava & Authur Mwanzi Asava [2014] KECA 172 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  MARAGA, AZANGALALA & KANTAI, JJ.A)

CIVIL APPLICATION NO. 52 OF 2014 (UR. 36/2014)

BETWEEN

JAMENY MUDAKI ASAVA ...................................................................APPLICANT

AND

BROWN OTENG ASAVA ....................................................... 1ST RESPONDENT

AUTHUR MWANZI ASAVA .................................................... 2ND RESPONDENT

(An application for stay of execution,  from the Ruling  of the High Court of Kenya at Kakamega  (Chitembwe, J.) dated 26th February, 2014

in

KAKAMEGA SUCC. CAUSE NO. 278 OF 2007)

************************************

RULING OF THE COURT

The Motion by Notice drawn by M/s Athunga & Co Advocates for the Applicant, filed under a Certificate of Urgency, is stated to be  brought under Rule 5 (2) (b) of this Courts  Rules and Sections 3A and 3B of the Appellate  Jurisdiction Act.   It is supported by  an affidavit of the  Applicant sworn on 18th July, 2014 where various reasons  are advanced for the   prayers sought principally that we grant a stay of  execution in Kakamega  High Court Succession Cause No. 278 of 2007 pending hearing and determination of Civil Appeal No. 23 of 2014.

That application was called for hearing on 23rd October, 2014 butneither the applicant nor his advocate was present.

Hearing Notice was served  upon the said Advocates on 10th September, 2014  as is evidenced by a stamp of  the said firm on the Hearing Notice and further evidenced by the Affidavit of service sworn by Joseph  Kiarie, a court process served, who depones that he served the said Notice on the said law firm on the said date.

Miss M. Bikeyo, the learned counsel for the respondent,  appeared for  the hearing of the  Motion and staed that nothing had been filed in opposition to the  application.   However, in terms of Rule  56 (1) of the Rules of this  Court, in the absence of the  applicant and his advocate where the application cannot be prosecuted the proper  course to take is to  dismiss the application  under the said Rule which we hereby proceed to do.

As the respondents did not oppose the application they are not entitled to costs.

DATED AND DELIVERED AT KISUMU THIS  30TH  DAY OF OCTOBER,  2014.

D. K. MARAGA

…................................

JUDGE OF APPEAL

F. AZANGALALA

......................................

JUDGE OF APPEAL

S. ole  KANTAI

…................................

JUDGE OF APPEAL