[2009] KEHC 2585 (KLR)
The court found that the applicant failed to satisfy the two essential conditions for the grant of stay of execution pending appeal: first, he did not demonstrate that the intended appeal was arguable and not frivolous; second, he did not show that the appeal would be rendered nugatory if stay was not granted....
Source-derived case information.
- Citation
- [2009] KEHC 2585 (KLR)
- Parties
- Appellant: Becton Sabuni Munialo; Respondent: Paul Ngome Nalianya
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 2008
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Appeals Process, Ex Parte Judgment, Discretionary Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Becton Sabuni Munialo
Appellant
Paul Ngome Nalianya
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether failure to annex the order to be stayed is fatal to the application.
- 3 Whether the intended appeal is arguable and not frivolous.
Ratio Decidendi
The court found that the applicant failed to satisfy the two essential conditions for the grant of stay of execution pending appeal: first, he did not demonstrate that the intended appeal was arguable and not frivolous; second, he did not show that the appeal would be rendered nugatory if stay was not granted. Additionally, the applicant failed to annex the order sought to be stayed, which is a necessary procedural requirement. The court, applying the principles established in ABOK ODERA V. KENYA POSTS & TELECOMMUNICATIONS CORPORATION, concluded that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The applicant's Notice of Motion for stay of execution pending appeal is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 90 of 2008
BECTON SABUNI MUNIALO …………………..…….. APPELLANT
VERSUS
PAUL NGOME NALIANYA …………..…………..... RESPONDENT
RULING
This is an application under Order XLI Rule 4 of the Civil Procedure Rules for stay of execution pending appeal. The application is premised on the grounds as stated in the body of the Notice of Motion and supported by an affidavit sworn by Becton Sabuni Munialo sworn on 9th January, 2009.
The application is opposed by the Respondent who has filed grounds of opposition. Mr. Momanyi learned Counsel appearing for the Applicants submits that Judgment in the lower Court was obtained ex parte and that the Applicant has a good defence. While Miss Chege learned Counsel appearing for the Respondent in opposition to the application submitted that the application is improper in that the appeal is challenging the dismissal order which dismissed the application to set aside the ex part judgment.
The Order to be stayed was not annexed and Mr. Momanyi submitted that it was not necessary to annex the decree. This is an application for stay of execution pending appeal. The principles applicable to an application for stay of execution are well settled.
Firstly, the Applicant has to show that the Appeal is not frivolous or that he has an arguable appeal.
Secondly, he must show that the appeal, if successful would be rendered nugatory if the applicant is not granted.
To satisfy the two conditions stated above it is necessary and it is a requirement that the Applicant annexes the order he intends to stay. In a discretionary matter like this the Court should take into account all the circumstances including the merits of the intended appeal.
In the case of ABOK ODERA V. KENYA POSTS & TELECOMMUNICATIONS CORPORATION – CIVIL APPLICATION NO. 206 OF 1996, the Court of Appeal held that there are two conditions which the Applicant must satisfy before he is granted stay of execution pending appeal.
(1) That the intended appeal is not frivolous, that it has an arguable ground to canvas during the intended appeal; and
(2) That the appeal if it is successful would be rendered nugatory if stay of the order is not granted.
Applying the above to this application I would say that the Applicant has not demonstrated that the intended appeal is not frivolous or that the appeal if it is successful would be rendered nugatory if stay of the order is not granted.
Accordingly the Applicant’s Notice of Motion is dismissed with costs.
DATED AND DELIVERED AT ELDORET THIS 21ST DAY OF JULY, 2009.
J. L. A. OSIEMO
JUDGE
In the presence of:-