[2004] KEHC 2596 (KLR)
The court found that the applicant had demonstrated sufficient merit in the application for stay of proceedings, despite the delay in filing. The applicant had shown seriousness in prosecuting the appeal by filing the record of appeal and taking steps for directions. The court held that not granting a stay would...
Source-derived case information.
- Citation
- [2004] KEHC 2596 (KLR)
- Parties
- Appellant: Arcade Stationers Limited; Respondent: Paul Mbweka Kinusu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 166 of 2003
- Procedural Posture
- Civil Appeal / Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings pending appeal allowed.
- Legal Topics
- Stay of Proceedings, Default Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Arcade Stationers Limited
Appellant
Paul Mbweka Kinusu
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether a stay of proceedings should be granted pending the determination of the appeal.
- 2 Whether refusal to grant stay would render the appeal nugatory and cause substantial loss to the applicant.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient merit in the application for stay of proceedings, despite the delay in filing. The applicant had shown seriousness in prosecuting the appeal by filing the record of appeal and taking steps for directions. The court held that not granting a stay would render the appeal nugatory and result in substantial loss to the applicant. Therefore, the application for stay of proceedings pending appeal was allowed as prayed.
Court Disposition
Application for stay of proceedings pending appeal allowed.
Orders
- The application dated March 15, 2004 is allowed as prayed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 166 OF 2003
ARCADE STATIONERS LIMITED ……………….……… PLAINTIFF
VERSUS
PAUL MBWEKA KINUSU ……………………………… DEFENDANT
RULING
This is an application under Order 41 Rule 4 of the Civil Procedure Rules for stay of proceedings in the lower court pending the determination of this Appeal. It arises out of the lower court’s refusal to set aside default Judgment entered against the Appellant (defendant in the lower court). Clearly, the case before the lower court has not been heard on merit, Judgment having been entered in default of entering appearance.
Although this application was made one year after the lower court’s order, it has sufficient merit. The applicant has shown the seriousness in filing the Record of Appeal, and in taking steps to set it down for directions. It ought to be heard on its appeal against the lower court’s decision, and not to grant stay would render the appeal nugatory, and result in substantial loss to the Applicant. Accordingly, I allow the application dated March 15, 2004 as prayed. Costs shall be in the cause.
Dated and delivered at Nairobi this 17th day of May, 2004.
ALNASHIR VISRAM JUDGE