The Court of Appeal sitting in Kisumu has dismissed an application by Everline Kerubo seeking to stop the execution of a Kisii High Court ruling which ordered her to return half of the dowry and fees her ex-husband, James Mayaka paid for her at Narok Teachers Training College.
Appellate Judges Festus Azangalala, Gatembu Kairu and Wanjiru Karanja said the applicants — Kerubo and Charles Moseti — admitted that the notice of appeal was not brought to the court though they had paid for the typed proceedings and judgment of the lower court.
In the ruling, the judges said the duo admitted they obtained the proceedings and the appeal was filed but they advertently omitted to produce it in the Court of Appeal when dealing with the application to strike out the notice of appeal.
Kerubo’s lawyer Wilkins Ochoki wanted the court to review its decision pending the appeal, arguing justice demanded the ruling of the lower court be set aside for the appeal to be heard on merit.
However, Mayaka’s counsel, Samson Sagwe objected, saying the application is devoid of merit and that the applicants failed to comply with the terms of the Appellate Court granting stay of execution.
“The court was justified in deeming the notice of appeal as withdrawn, the court does not have jurisdiction to review its own decision,” he said.
Kisii High Court Judge, Crispin Nagillah, who read the ruling on behalf of Justice Ruth Sitati ordered Kerubo to return the dowry and Sh20,500 and the fees, prompting her to appeal against the execution pending the hearing and determination.
Sagwe sought court to strike out the notice of appeal, saying the duo failed to deposit the money, file and serve the record of appeal, nearly a year after the court had issued the orders.
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