[2023] KEHC 22989 (KLR)
The court found that the judgment of the trial court had already been executed before it was set aside by the ruling under appeal. As a result, there were no further proceedings pending or ongoing in the trial court that could be stayed. The application for stay of further proceedings was therefore without basis, as...
Source-derived case information.
- Citation
- [2023] KEHC 22989 (KLR)
- Parties
- Appellant: Catherine Akinyi; Respondent: Maurice Odhiambo Ojing; Respondent: Malv Investment; Respondent: Al Alyaan Motors Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E604 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JN Mulwa
- Legal Topics
- Stay of Proceedings, Execution of Judgment, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Akinyi
Appellant
Maurice Odhiambo Ojing
Respondent
Malv Investment
Respondent
Al Alyaan Motors Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether a stay of further proceedings should be granted pending determination of the appeal.
- 2 Whether there are any further proceedings to be stayed given the execution of the decree.
Ratio Decidendi
The court found that the judgment of the trial court had already been executed before it was set aside by the ruling under appeal. As a result, there were no further proceedings pending or ongoing in the trial court that could be stayed. The application for stay of further proceedings was therefore without basis, as there was nothing left for hearing or determination in the lower court. The absence of any response from the respondents did not alter this conclusion, as the facts were undisputed and the relief sought was not available in the circumstances.
Court Disposition
application dismissed with costs
Orders
- The application dated July 1, 2023 is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
Akinyi v Ojing & 2 others (Civil Appeal E604 of 2023) [2023] KEHC 22989 (KLR) (Civ) (29 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22989 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E604 of 2023
JN Mulwa, J
September 29, 2023
Between
Catherine Akinyi
Appellant
and
Maurice Odhiambo Ojing
1st Respondent
Malv Investment
2nd Respondent
Al Alyaan Motors Ltd
3rd Respondent
Ruling
1. By an application dated July 1, 2023, the Appellant seeks an order that pending hearing and determination of the appeal, the court be pleased to grant a stay of further proceedings arising from the small claims court ruling dated May 26, 2023 which ruling set aside the judgment and decree therefrom.
2. It is averred that the 3rd Respondent Al Alyaan Motors executed the decree before the appeal was filed and therefore the application was overtaken by the events.
3. The application is grounded on provisions of Order 42 Rule 6 of the Civil Procedure Rules among other provisions, and supporting affidavit of the Applicant.
4. The Respondents did not file responses and invited the court to make a finding.
5. I have considered the undisputed facts that the judgment of the trial court was executed before it was set aside by the ruling dated May 26, 2023 of the trial court which is the subject of the instant appeal.
6. Prayer No 2 of the applicant’s application seeks stay of further proceedings in or arising from the trial court's claim, which in my understanding means further hearing of the said case or any other proceedings before the trial court, which proceedings are nonexistent as there is a judgment whose decree has been executed hence nothing left for hearing.
7. From the above analysis the application dated July 1, 2023 has no basis and is hereby dismissed with costs.
DELIVERED, DATED AND SIGNED IN NAIROBI THIS 29THDAY OF SEPTEMBER, 2023. JANET MULWAJUDGE