[2017] KEHC 7243 (KLR)
The court found that in the interests of justice, the application for stay of execution should be allowed. The judge considered the application, the supporting affidavit, and the replying affidavit, and determined that execution of the decree should await the outcome of the pending appeal. The court exercised its...
Source-derived case information.
- Citation
- [2017] KEHC 7243 (KLR)
- Parties
- Plaintiff: Charles Angucho Suchia; Defendant: Elphas Nyambaka Cosmas
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 123 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed; execution stayed pending appeal
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Appeals, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Angucho Suchia
Plaintiff
Elphas Nyambaka Cosmas
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the appeal.
- 2 Whether the application meets the threshold for stay under Order 42 Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that in the interests of justice, the application for stay of execution should be allowed. The judge considered the application, the supporting affidavit, and the replying affidavit, and determined that execution of the decree should await the outcome of the pending appeal. The court exercised its discretion under Order 42 Rule 6(1) of the Civil Procedure Rules and relevant provisions of the Civil Procedure Act to ensure that the appeal is not rendered nugatory and that justice is served to both parties. Costs of the application were ordered to abide the outcome of the appeal.
Court Disposition
application for stay of execution allowed; execution stayed pending appeal
Orders
- Execution of the decree dated 27/7/2016 is stayed pending the hearing and determination of Court of Appeal No.78 of 2016 at Kisumu.
- Costs of the application shall abide in the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL SUIT NO.123 OF 2010 (O.S.)
CHARLES ANGUCHO SUCHIA………………………………………………….PLAINTIFF
VERSUS
ELPHAS NYAMBAKA COSMAS……………………………………………….DEFENDANT
RULING
On 21/9/2016 the plaintiff / respondent filed a notice of motion under order 42 rule 6(1) of the Civil Procedure Act and section 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act.
He prayed that this application be certified urgent and be heard exparte in the first instance.
He also prayed for a stay of execution of the decree dated 27/7/2016 pending the hearing and determination of Court of Appeal No.78 of 2016 At Kisumu.
The application was supported by the affidavit of Elphas Cosmas Nyambaka of P.O. Box 499 Kitale.
The application was served on 30/8/2016. When the matter came for hearing on 13/9/2016 the respondent though served had not filed a replying Affidavit. He was awarded more time to do so and the case was fixed for hearing on 2/9/2016.
The respondent filed his replying Affidavit on 28/9/2016.
I have perused the application and I order that in the interests of justice that the application shall be allowed and execution shall await the result of the filed appeal.
The costs of this application shall abide in the appeal.
Ruling read in open court.
DATEDandDELIVEREDatBUNGOMAthis10th day of March, 2017
S.N. MUKUNYA
JUDGE
In the presence of:
Court Assistants - Chemtai/Joy
Mr. Watangaa - For the Petitoner
Mr. Anwar - For the defendant