[2006] KECA 50 (KLR)
The Court of Appeal found that the applicant's intended appeal was arguable and not frivolous. The court further held that requiring the applicant to deposit the entire decretal sum would be too onerous and potentially impossible, thus risking rendering the appeal nugatory if a stay was not granted. Applying the...
Source-derived case information.
- Citation
- [2006] KECA 50 (KLR)
- Parties
- Applicant: Dr. Aloys Blaise Ayako; Respondent: University of Nairobi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 281 of 2005
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- stay of execution granted on condition of deposit of KES 500,000 within 30 days; otherwise, application dismissed
- Judges
- AM Githinji, CA Otieno
- Legal Topics
- Stay of Execution, Appeals, Striking Out of Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Aloys Blaise Ayako
Applicant
University of Nairobi
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the High Court orders pending appeal.
- 2 Whether the intended appeal is arguable and not frivolous.
- 3 Whether the success of the intended appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court of Appeal found that the applicant's intended appeal was arguable and not frivolous. The court further held that requiring the applicant to deposit the entire decretal sum would be too onerous and potentially impossible, thus risking rendering the appeal nugatory if a stay was not granted. Applying the principles from Oraro and Rachier v. Co-operative Bank of Kenya Limited, the court exercised its discretion to grant a stay of execution of the High Court orders, but on the condition that the applicant deposits KES 500,000 with the court within 30 days. Failure to comply with this condition would result in the dismissal of the application for stay.
Court Disposition
stay of execution granted on condition of deposit of KES 500,000 within 30 days; otherwise, application dismissed
Orders
- There shall be a stay of execution of the High Court decree pending the filing and determination of the intended appeal, subject to the applicant depositing KES 500,000 with the Court within 30 days.
- In default of the deposit, the application for stay shall stand dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appli 281 of 2005 (UR 174/2005)
DR. ALOYS BLAISE AYAKO………………......……………..APPLICANT
AND
UNIVERSITY OF NAIROBI…………...…......……………RESPONDENT
(Being an application for stay of execution of the order of the High Court of Kenya at Nairobi (Mugo, J) dated 24th June, 2004 and 25th February, 2005
in
H.C.C.C. NO. 832 OF 2002 )
**************
RULING OF THE COURT
This application expressed to be brought under rule 5(2)(b) of the Rules of this Court seeks a stay of execution of the orders made by the superior court at Nairobi on 24th June, 2004 and on 25th February, 2005 in H.C.C.C. No. 832 of 2002, pending the filing and determination of an intended appeal.
By a plaint dated 15th May, 2002, the respondent sought judgment against the applicant for Shs.676,000/= in respect of rents due to it for the months of June, 1999 to August, 2001 at the rate of Shs.26,000/= per month.
The applicant duly filed a statement of defence and also lodged a counter-claim and/or set-off. However, on 24th June, 2004 his defence was struck out on the ground that he had not made discovery on oath of the documents which were or had been in his possession or power relating to the matters in question in the suit. Subsequently, judgment was entered against him and for the respondent. It transpired later that all attempts to set that judgment aside have been in vain.
We have considered the rival submissions made by the parties before us. We have, also, carefully perused the pleadings on record. We are satisfied that the applicant’s intended appeal is indeed arguable. In other words we do not think that the intended appeal is frivolous.
In determining whether the success in the intended appeal will be rendered nugatory unless the applicant is granted a stay, we apply the principles enunciated by this Court in ORARO AND RACHIER V. CO-OPERATIVE BANK OF KENYA LIMITED [1999] LLR 1118 (CAK). In this instance, the circumstances showed that it would be too onerous and well-nigh impossible to require the applicant to deposit the entire decretal sum in court.
All in all, we are satisfied that the applicant has made out a case for the grant of a stay of execution of the orders made by the superior court but on terms. We order that there be a stay of the said decree pending the filing and determination of the intended appeal subject to the applicant depositing with this Court a sum of Shs.500,000/= within 30 days hereof; and, in default this application shall stand dismissed.
These shall be our orders.
DATED and DELIVERED at Nairobi this 10th day of November, 2006.
P.K. TUNOI
………………………………………..
JUDGE OF APPEAL
E.M. GITHINJI
……………………………………
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
……………………………………………
JUDGE OF APPEAL
I certify that this isa
true copy of the original.
DEPUTY REGISTRAR