[2018] KEHC 4948 (KLR)
The court found that the application for stay of execution pending the hearing and determination of the application had been overtaken by events, as the application had already been heard interpartes. Granting the stay at this stage would serve no meaningful purpose and would be in vain. The court further noted that...
Source-derived case information.
- Citation
- [2018] KEHC 4948 (KLR)
- Parties
- Appellant: Charles Wesonga Mbingi; Respondent: Bernard Odhiambo Omusi; Respondent: The Attorney General; Respondent: Ayoti Distributors
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 64 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs to the 1st respondent
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Interlocutory Applications, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Wesonga Mbingi
Appellant
Bernard Odhiambo Omusi
Respondent
The Attorney General
Respondent
Ayoti Distributors
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of judgment and decree pending the hearing and determination of the application.
- 2 Whether the application has merit in light of the circumstances and compliance with lower court orders.
Ratio Decidendi
The court found that the application for stay of execution pending the hearing and determination of the application had been overtaken by events, as the application had already been heard interpartes. Granting the stay at this stage would serve no meaningful purpose and would be in vain. The court further noted that the applicant had not demonstrated sufficient merit in the application, particularly in light of his failure to comply with previous court orders and the history of adjournments at his instance. Consequently, the application was dismissed with costs to the 1st respondent.
Court Disposition
application dismissed with costs to the 1st respondent
Orders
- The notice of motion dated 20.7.18 is dismissed with costs to the 1st respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO 64 OF 2018
CHARLES WESONGA MBINGI.......APPLICANT/APPELLANT
VERSUS
BERNARD ODHIAMBO OMUSI....................1ST RESPONDENT
THE ATTORNEY GENERAL.........................2ND RESPONDENT
AYOTI DISTRUBUTORS................................3RD RESPONDENT
RULING
1. By a notice of motion dated 20. 7.18 brought under Section 3A of the Civil Procedure Act and Order 22 Rule 2, Order 50 Rule 1, 4, 6, 10 (1) and (2) Rule 1(a) of the Civil Procedure Rules and all enabling provisions of the Law, the applicant/appellant prays for orders that
1. ……………………..Spent
2. The Honourable Court be pleased to issue an Order of Stay of the Judgment and Decree in KISUMU CMCC NO.86 OF 2016 together with subsequent orders arising therefrom pending the hearing and determination of this application interpartes
3. Costs of this application be provided for
2. The application is based on the grounds among others that judgment has been entered against the appellant for Kshs. 1,000,000/- and that he was not given a chance to state his case.
3. The application is supported by an affidavit sworn by the applicant on 20. 7.18 in which he reiterates the grounds on the face of the application. Attached to the affidavit are pleadings and correspondence filed in the lower court.
4. The application is opposed on the grounds set out in the 1st respondent’s replying affidavit sworn on 27. 7.18. He avers that applicant failed to comply with orders granted by the trial court even and that the case was adjourned occasionally at the instance of the applicant.
5. I have considered the application in the light of the affidavits on record. Applicant seeks stay orders pending the hearing and determination of this application. This application has been heard interpartes and the order sought would in the event that it is to granted lapse at the determination of this application. The order sought would be granted in vain and would serve no meaningful purpose.
6. The upshot of my analysis is that the notice of motion dated 20. 7.18 is devoid of merit. It is dismissed with costs to the 1st respondent.
DATED AND DELIVERED AT KISUMU THIS1STDAY OF AUGUST2018
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant -Felix
Applicant/Appellant - N/A
Respondent - Ms. Nyangalo h/b Mr. Ochieng