[2012] KEHC 3087 (KLR)
The court granted a stay of execution of its order dated 8th June 2012 pending the hearing and determination of the appeal to the Court of Appeal. The stay was granted on the same reasons and terms as the previous order, specifically requiring the applicant to pay the 2nd respondent Kshs.76,250 within seven days and...
Source-derived case information.
- Citation
- [2012] KEHC 3087 (KLR)
- Parties
- Appellant: Anne N. Ondabu; Respondent: Thomas Osaka; Respondent: Nehemiah Achuti Mochama
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 164 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted on conditions; costs to 2nd respondent.
- Legal Topics
- Stay of Execution, Appeals Process, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne N. Ondabu
Appellant
Thomas Osaka
Respondent
Nehemiah Achuti Mochama
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the court order pending appeal.
- 2 Whether the applicant should comply with the terms set out in the previous order as a condition for stay.
Ratio Decidendi
The court granted a stay of execution of its order dated 8th June 2012 pending the hearing and determination of the appeal to the Court of Appeal. The stay was granted on the same reasons and terms as the previous order, specifically requiring the applicant to pay the 2nd respondent Kshs.76,250 within seven days and for the balance deposited in court to be retained pending the outcome of the appeal. In default of compliance, the 2nd respondent is at liberty to execute the decree to recover the specified sum. The court emphasized that the applicant's entitlement to a stay is conditional upon compliance with these terms, and awarded costs of the application to the 2nd respondent.
Court Disposition
Stay of execution granted on conditions; costs to 2nd respondent.
Orders
- The applicant shall pay the 2nd respondent Kshs.76,250 within seven days from the date of the ruling.
- The balance deposited in court shall be retained pending the hearing and final determination of the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT ELDORET
Civil Appeal 164 of 2010
ANNE N. ONDABU………………………………………………….APPELLANT
VERSUS
THOMAS OSAKA…………………………………………..…1ST RESPONDENT
NEHEMIAH ACHUTI MOCHAMA…………...………………2ND RESPONDENT
RULING:
The application before this court is brought by way of Notice of Motion under the provisions of Order 51 Rule 1 & 3, Order 42 Rule 6(1), (4), 7(2) & 9 of the Civil Procedure Rules and all other enabling provisions of the law.
The Applicant is seeking a stay of the Order of this Court dated the 8th June 2012 pending the hearing and determination of an appeal to the Court of Appeal.
The Applicants submissions are the same as those raised when arguing the Notice of Motion dated 21st March 2011 that gave rise to the Order being appealed against.
The Applicant has chosen not to comply with the said order and has opted to prefer an appeal to the Court of Appeal.
The stay is hereby granted on the same reasons as set out in this Court’s Order dated 8th June 2011 and upon the same terms and conditions;
It is hereby ordered that;
1) The Applicant do pay the 2nd Respondent the sum of Kshs.76,250/= within seven (7)days from the date hereof.
2)The balance deposited in Court, to be retained pending the hearing and final determination of the appeal.
3) In default the 2nd Respondent be a t liberty to execute the decree to recover the said portion.
4) The 2nd Respondent shall have the costs of this application.
It is so ordered.
Dated and Delivered at Eldoret this 13th day of July 2012.
A.MSHILA
JUDGE
Coram: Before Hon. A Mshila J
CC; Andrew
Counsel for the Appellant Yego holding brief for Buluma.
Counsel for the Respondents Kariuki
A.MSHILA
JUDGE