[2012] KEHC 3247 (KLR)
The court held that while the right of appeal is fundamental and should not be hindered, the respondent is equally entitled to enjoy the fruits of the judgment. To balance these interests, the court ordered the applicant to pay half of the decretal sum to the respondent and deposit the balance in a joint interest...
Source-derived case information.
- Citation
- [2012] KEHC 3247 (KLR)
- Parties
- Applicant: Centre for Peace & Democracy Board of Directors; Respondent: Non-Governmental Organization Co-ordination Board
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 7 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Stay of Execution Pending Appeal
- Outcome
- partially allowed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Appeal Prerequisites, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Centre for Peace & Democracy Board of Directors
Applicant
Non-Governmental Organization Co-ordination Board
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has met the conditions for grant of stay of execution pending appeal.
- 2 Whether the respondent is entitled to enjoy the fruits of the judgment while an appeal is pending.
Ratio Decidendi
The court held that while the right of appeal is fundamental and should not be hindered, the respondent is equally entitled to enjoy the fruits of the judgment. To balance these interests, the court ordered the applicant to pay half of the decretal sum to the respondent and deposit the balance in a joint interest earning account of both counsels within 30 days. This arrangement secures the respondent's interests while preserving the applicant's right to appeal.
Court Disposition
partially allowed
Orders
- The applicant shall pay to the respondent half of the decretal sum of Kshs. 163,152.20.
- The balance shall be deposited in a joint interest earning account of both counsels for the applicant and respondent within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATKISUMU
MISCELLANEOUS APPLICATION 7 OF 2011
CENTRE FOR PEACE & DEMOCRACY BOARD OF DIRECTORS……………….……………………….APPLICANT
VERSUS
NON-GOVERNMENTAL ORGANIZATION CO-ORDINATION BOARD…………………………………RESPONDENT
R U L I N G
In his application dated 12-3-2012 the applicant has prayed for stay of execution pending the hearing and determination of an appeal in Kisumu C.A No. 27 of 2011. The application is supported by the affidavit of Michael Juma Otieno.
The applicant is dissatisfied by a striking out order issued pursuant to a successful preliminary objection which was allowed on 28-9-2011. In allowing the preliminary objection the court granted the respondent the costs of the suit. The respondent did proceed to file his bill which was taxed at Kshs. 163,152. 20/= by the taxing master on 14-5-2012.
The respondent has filed grounds of opposition dated 13-3-2012 arguing that the applicant has not met the prerequisites of grounds which could permit this court to grant stay of execution pending appeal. He prayed that the said application be allowed.
After careful consideration of this application, it is my opinion that an appeal is a fundamental principle in our statutes. No party should stand on the way of any appellant. The respondent nonetheless must be seen to enjoy the fruits of his success.
I shall therefore order that the applicant shall pay to the respondent half of the decretal sum of Kshs. 163,152. 20/= and the balance be deposited in a joint interest earning account of both the counsels for the applicant and respondent. This be done within 30 days from the date of delivery of this ruling. Costs of this application to the respondent.
Dated, signed and delivered at Kisumu this 13th day of July, 2012.
H.K. CHEMITEI
JUDGE
In the presence of:
………………………………..for the applicant
……………………………….for the respondent
HKC/va