[2019] KEHC 12459 (KLR)
The court held that the application for stay of execution was fatally defective because it was brought under the wrong provisions of law. The applicant invoked Sections 1A, 1B, and 3A of the Civil Procedure Act instead of the applicable Order 42 Rule 6 of the Civil Procedure Rules, which specifically governs...
Source-derived case information.
- Citation
- [2019] KEHC 12459 (KLR)
- Parties
- Appellant: China Jiangxi International (K) Ltd; Respondent: Moses Adero Otieno
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal Appeal14 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the appellant/respondent
- Legal Topics
- Stay of Execution, Appeals Process, Application of Wrong Provisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
China Jiangxi International (K) Ltd
Appellant
Moses Adero Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution was properly before the court given the invocation of incorrect legal provisions.
- 2 Whether there was any substantive order capable of being stayed by the court.
- 3 Whether the sum of Kshs.300,000 deposited in the respondent's advocate's account should be released to the appellant.
Ratio Decidendi
The court held that the application for stay of execution was fatally defective because it was brought under the wrong provisions of law. The applicant invoked Sections 1A, 1B, and 3A of the Civil Procedure Act instead of the applicable Order 42 Rule 6 of the Civil Procedure Rules, which specifically governs applications for stay pending appeal. As a result, the court found it had no basis to exercise its discretion in favour of the applicant. Furthermore, the court noted that there was no operative order in the impugned judgment directing the release of the Kshs.300,000 to the appellant, and thus, there was nothing capable of being stayed. The application was therefore dismissed with...
Court Disposition
application dismissed with costs to the appellant/respondent
Orders
- The application dated 30th April 2019 is dismissed with costs to the appellant/respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
CIVIL APPEAL NO.14 OF 2018
CHINA JIANGXI INTERNATIONAL (K) LTD ..APPELLANT/RESPONDENT
VERSUS
MOSES ADERO OTIENO ......................................RESPONDENT/APPLICANT
(Being an appeal from judgment and decree of Hon. Japheth Bill, RM in Mbita CC No.17 of 2017 delivered on 03. 05. 2018)
RULING
1. The application by the respondent dated 30th April 2019, seeks an order for stay of execution of this court’s judgment delivered on 9th April 2019 pending hearing and determination of the application (see prayer 2 of the Notice of Motion) rather than the intended appeal and an order that the sum of Kshs.300, 000/= in a fixed account of the applicant’s advocate, should not be released to the appellant pending hearing and determination of the appeal pending in the Court of Appeal.
2. Most significantly, the application is brought under the provisionsof Sections 1A, 1B and 3A of the Civil Procedure Act and not Order 42 Rules 6 (1) and (2) of the Civil Procedure Ruleswhich provides for stay in case of appeal and which would invariably be the applicable and enabling provision of the law in the present circumstances.
To the extent that the wrong provisions of the law have herein been invoked by the applicant in seeking orders of stay, the application is misconceived and fatally defective for exercise of this court’s discretion in favour of the applicant.
4. It would therefore follow that that the applicant’s grounds and submissions in support of the application cannot be sustained and must now be overruled.
In any event, this determination renders prayer two (2) of the application inapplicable for having been overtaken by events.
As regards prayer three (3), the import of the impugned judgment was merely to allow the applicant’s appeal, and dismissing the respondent’s suit in the lower court against the appellant with costs. There was no order that the amount of Kshs.300, 000/= deposited in the respondent’s advocate fixed bank account be released to the appellant.
Even if the application was proper and competent before court, there was nothing capable of being stayed by this court.
5. In sum, the application is devoid of merit and is hereby dismissed with costs to the appellant/respondent.
J.R. KARANJAH
JUDGE
16. 10. 2019
[Dated and delivered this 16thday of October, 2019]
[In the presence of M/s Nyarige holding brief for Mr. Odhiambo for Applicant and Mr. Anyumba for Appellant/Respondent]