[2004] KEHC 685 (KLR)
The court found that the applicant had previously filed multiple applications for stay of execution, all of which had been dismissed with reasons given. The applicant did not demonstrate any new circumstances or material facts that would justify the filing of a fresh application for stay. The proper course for the...
Source-derived case information.
- Citation
- [2004] KEHC 685 (KLR)
- Parties
- Appellant: Cajetan Kerama Okemwa; Respondent: Joseph Kerongo Orangi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 110 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Appeals Process, Res Judicata, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cajetan Kerama Okemwa
Appellant
Joseph Kerongo Orangi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the repeated filing of similar applications for stay is permissible after previous dismissals.
- 3 Whether there are new circumstances justifying a fresh application for stay.
Ratio Decidendi
The court found that the applicant had previously filed multiple applications for stay of execution, all of which had been dismissed with reasons given. The applicant did not demonstrate any new circumstances or material facts that would justify the filing of a fresh application for stay. The proper course for the applicant, if dissatisfied with the previous dismissals, was to appeal those decisions rather than file repetitive applications seeking the same relief. The court held that entertaining such repeated applications without new grounds would amount to an abuse of the court process. Consequently, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO.110 OF 2003
(From original Civil Suit No.58 of 2000 of CM’s Court at Kisii)
CAJETAN KERAMA OKEMWA ……………………………………. APPELLANT
VERSUS
JOSEPH KERONGO ORANGI …………………………………….. RESPONDENT.
RULING
The applicant seeks for stay of execution of the judgment and decree in KISII CM CC.NO.58 OF 2000 pending the hearing and determination of the appeal. It was submitted that judgment was delivered on 16/5/03 and the applicant being dissatisfied promptly filed an appeal. If stay of execution is not granted the appeal will be rendered nugatory as the Respondent is not a man of any known means. Applicant offered to deposit title of his land as security.
Application was opposed. Mr. Kimanga submitted that this is the fourth application for stay. The others were dismissed. The applicant should therefore have appealed and not file another application.
I have considered the application, affidavits and submissions. It is clear from the proceedings that this is not the first application for stay. The first application was filed on 12th June 2003. It was seeking for stay of execution. That application was dismissed on 15th October 2003. Applicant thereafter filed another application dated 28/11/03 seeking the court to review and set aside the Order/Ruling made on 15/10/03. That application was heard on 11th May 2003. It was dismissed on 21st May 2003. Thereafter the applicant brought this application.
The court clearly gave reasons why it dismissed the first application for stay. Thereafter an application to set that order aside was also rejected and reasons given. I concur with Mr. Kimanga that the applicant, if he was not satisfied ought to have appealed against the ruling and not to file a similar application seeking for similar orders. Court was not told that there are any new circumstances since the first application was dismissed.
In the circumstances the application is dismissed with costs.
KABURU BAUNI
JUDGE
17/11/04
Mr. Nyauntu H/B for Mr. Kimanga for the Respondent.
KABURU BAUNI
JUDGE
17/11/04