[2001] KECA 262 (KLR)
The Court found that the refusal by the High Court to grant an adjournment, after thirteen previous adjournments, did not constitute an arguable point for appeal. The applicant failed to show that the intended appeal would be rendered nugatory if stay was not granted, as there was no evidence that the respondent...
Source-derived case information.
- Citation
- [2001] KECA 262 (KLR)
- Parties
- Applicant: Allied Industries Ltd; Respondent: David Mbuthia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 323 of 2000
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Adjournment Refusal, Appeal Lodgment, Decretal Sum Refund
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allied Industries Ltd
Applicant
David Mbuthia
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether refusal to grant an adjournment by the High Court justified a stay of execution pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if stay is not granted.
- 3 Whether the respondent's alleged inability to refund the decretal sum is sufficient ground for stay.
Ratio Decidendi
The Court found that the refusal by the High Court to grant an adjournment, after thirteen previous adjournments, did not constitute an arguable point for appeal. The applicant failed to show that the intended appeal would be rendered nugatory if stay was not granted, as there was no evidence that the respondent would be unable to refund the decretal sum. The mere assertion of inability to refund is insufficient. The application for stay of execution was therefore dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: KWACH, OMOLO & SHAH, JJ.A. CIVIL APPLICATION NO. NAI. 323 OF 2000
BETWEEN
ALLIED INDUSTRIES LTD.....................................APPLICANT
AND
DAVID MBUTHIA.................................................RESPONDENT
(An application for stay of execution pending the filing of an intended appeal from a judgment of the High Court of Kenya at Nairobi (Ang'awa J) dated 28nd February, 2000
in
H.C.C.C. NO. 1799 OF 1993) ******************
RULING OF THE COURT
The only allegedly arguable point that the applicant's counsel says he would have at the time of the hearing of the intended appeal is that the learned Judge in the superior court refused to grant an adjournment as a result of which refusal the applicant was unable to present its case properly before the superior court. The learned judge pointed out, whilst refusing to grant the adjournment, that there were thirteen adjournments. We do not think that is such an arguaTbhlies poaipnptl icaast icoonn,t enodtehde.rwise also is a non-starter. The time for lodging the appeal has already expired.
There is nothing before us to show that the success in the intended appeal, if ever it will be mounted, will be rendered nugatory. Simply to say that the respondent will be unable to refund the decretal sum is not enough. We see no merit in this application. It is dismissed with costs.
Dated and delivered at Nairobi this 7th day of March, 2001.
R.O. KWACH .................. JUDGE OF APPEAL
R.S.C. OMOLO .................. JUDGE OF APPEAL
A.B. SHAH ................... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR