[2018] KEHC 7863 (KLR)
The court found that the application for stay was not tenable because the order sought to be stayed was a dismissal order, which is not a positive order capable of execution. The court further held that there was no evidence of an appeal having been filed, only a notice of appeal. The court also noted that the...
Source-derived case information.
- Citation
- [2018] KEHC 7863 (KLR)
- Parties
- Plaintiff: Bomet Teachers Training College; Defendant: Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2 of 2017
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GO Shikwe
- Legal Topics
- Stay of Execution, Injunctions, Res Judicata, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bomet Teachers Training College
Plaintiff
Bank of Kenya
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of the orders given on 31st July 2017 pending appeal.
- 2 Whether the application for stay is tenable where the dismissed order is not a positive order capable of execution.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that the application for stay was not tenable because the order sought to be stayed was a dismissal order, which is not a positive order capable of execution. The court further held that there was no evidence of an appeal having been filed, only a notice of appeal. The court also noted that the applicant had previously filed similar applications which were dismissed, and the matter was res judicata. The court concluded that the applicant could be adequately compensated by damages if successful in the suit, and therefore, the appeal would not be rendered nugatory if stay was not granted. Consequently, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 7th November 2017 is dismissed with costs.
- Parties to be furnished with certified copies of the ruling.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BOMET
HIGH COURT CIVIL CASE NO. 2 OF 2017
BOMET TEACHERS TRAINING COLLEGE.......PLAINTIFF
=VERSUS=
BANK OF KENYA................................................DEFENDANTS
RULING
The application dated 7th November 2017 seeks the following orders:-
1. Spent
2. That this court do grant a stay of the orders given on 31st day 2017 pending the hearing and determination of this application.
3. That the court be pleased to grant a stay of the orders given on 31st July 2017 pending the hearing and determination of the intended appeal.
1. The grounds are that
1. This court delivered a ruling dated 31st July 2017 in which it dismissed the plaintiff application dated 16th March 2017.
2. That the applicant being dissatisfied with the said decision has filed a notice of appeal and has requested for certified copies of the proceedings.
3. That the suit property is due for sale by public auction on 22/12/2017.
4. That the appeal has high chances of success and if execution is carried out it will render the appeal nugatory.
5. That there is no delay in bringing up the application.
2. That application is opposed on the grounds:-
1. That there is no attached order subject matter of the application.
2. That there is no evidence of an appeal produced to this honourable court.
3. The application seeking stay of a dismissal order its untenable in law as same is not a positive order capable of execution.
4. That the application is an abuse of court process, the plaintiff having filed previously two different applications for injunction in different suits and which all applications were dismissed.
In the case of Peter Gacheche –V- AG (Civil Appeal No. 24 of 2014. It was held that there are twin principles for the grant of stay orders.
1. That the appeal must be shown to be arguable.
2. That if the appeal if successful, shall be rendered nugatory if stay is not granted.
In the present case, there is a Notice of Appeal filed. However, there is no indication as to whether there is an appeal filed in court.
The court rendered its ruling dated 31st day of July 2017 and in which it observed at paragraph 2 page 6. I have perused Bomet HCC No. 2 of 2015. The parties are the same as in the present suit No. 2 of 2017. Bomet Teachers Training Vs Bank of Africa Kenya Ltd. The prayers sought are the same which are injunctive orders over the sale by the Defendant of LR. No. Bomet Township/114. The court dismissed the application for being Res Judicata.
It is the same ruling ostensibly which is being appealed from. The appeal if any is not arguable. This court dismissed an application for an injunction with costs. There is nothing to stay. If stay is not granted will the appeal be rendered nugatory? The land subject matter of sale by public auction can be valued as required by law. The applicant can be adequately compensated by way of damages in the event he succeeds in his suit.
This application has no merit and it is dismissed with costs.
Ruling delivered dated and signed in open court this 29th day of January 2017 in open court and in the present of learned counsel for the applicant Mr. Mitey absent learned counsel for the Respondent Mrs. Korir holding brief Miss Kosgey
Court assistant Rotich.
M. MUYA
JUDGE
29/1/18
Parties be furnished with certified copies of the ruling.
M. MUYA
JUDGE
29/1/18