[2014] KEHC 6568 (KLR)
The court found that the applicant failed to demonstrate any substantial loss that would be suffered if the taxed costs were paid to the respondent. Additionally, the applicant did not show that the respondent would be unable to refund the costs should the appeal succeed. The court emphasized that the conditions for...
Source-derived case information.
- Citation
- [2014] KEHC 6568 (KLR)
- Parties
- Appellant: Charles Sigu Otieno; Respondent: John Owuor Angasa
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 94 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Sigu Otieno
Appellant
John Owuor Angasa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for grant of stay of execution pending appeal.
- 2 Whether substantial loss will be suffered by the applicant if stay is not granted.
- 3 Whether sufficient security has been provided by the applicant as required by law.
Ratio Decidendi
The court found that the applicant failed to demonstrate any substantial loss that would be suffered if the taxed costs were paid to the respondent. Additionally, the applicant did not show that the respondent would be unable to refund the costs should the appeal succeed. The court emphasized that the conditions for granting stay pending appeal, including demonstration of substantial loss and provision of security, were not met by the applicant. Consequently, the application for stay was found to lack merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay pending appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
ORIGINAL
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 94 OF 2009
CHARLES SIGU OTIENO............................................................APPELLANT
VERSUS
JOHN OWUOR ANGASA..........................................................RESPONDENT
R U L I N G
The notice of motion application dated 21-3-2012 arises from the dismissal of the applicant's appeal and consequently filing a second appeal in the court of appeal. The said application prays for stay pending appeal and is supported by the affidavit of the appellant sworn on 21-3-2012,
The substance of the application is that the intended appeal shall be rendered nugatory if stay of execution is not granted. In particular the Deputy Registrar has taxed the respondent's costs at Kshs. 106, 527/= in favour of the respondent . Infact it is the respondent's case that he ought to be paid this costs as the previous cost in the lower court of Kshs.8,699/= has not been paid by the applicant.
The condition for granting stay pending appeal are now well settled by the statute and various case laws. A party must demonstrate that the appeal shall be rendered nugatory if stay is not granted and that substantial loss shall be incurred.
He must finally as of necessity provide a sufficient security pending the appeal.
Having carefully perused the application as well as the submissions by both parties, I am not persuaded that the application is meritorious. The applicant has not demonstrated any loss he stands to suffer should he pay the taxed costs. Equally, he has failed to demonstrate that the respondent shall not pay back should the application succeed.
In the premises I do dismiss the appeal with costs to the respondent.
Dated, signed and delivered at Kisumu this 5th day of February , 2014.
H.K. CHEMITEI
JUDGE
HKC/va