[2018] KEHC 2592 (KLR)
The court found that the applicant failed to demonstrate that the respondent was incapable of refunding the half decretal amount as ordered by the trial court. The applicant did not provide sufficient evidence to show that substantial loss would result if the stay was not granted. Furthermore, the court held that...
Source-derived case information.
- Citation
- [2018] KEHC 2592 (KLR)
- Parties
- Appellant: China Jiangxi International Ltd; Respondent: Festus Muriithi Gitonga
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 26 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Appeals Process, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
China Jiangxi International Ltd
Appellant
Festus Muriithi Gitonga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order for stay of execution pending appeal.
- 2 Whether the applicant has demonstrated that the respondent is incapable of refunding the decretal amount if the appeal succeeds.
- 3 Whether the conditions imposed by the trial court for stay pending appeal were unreasonable.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the respondent was incapable of refunding the half decretal amount as ordered by the trial court. The applicant did not provide sufficient evidence to show that substantial loss would result if the stay was not granted. Furthermore, the court held that the conditions imposed by the trial court for stay pending appeal were not unreasonable. Consequently, the application for stay pending appeal was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay pending appeal is dismissed.
- Costs shall abide the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. 26 OF 2017
(Being an Appeal from the Judgment and Decree in Kitale Chief Magistrate's Court in Civil Suit No. 346 of 2015 delivered by Hon. V.O. Adet Senior Resident Magistrate
CHINA JIANGXI INTERNATIONAL LTD...........APPELLANT
VERSUS
FESTUS MURIITHI GITONGA.........................RESPONDENT
R U L I N G
1. The court has perused the application dated 20/9/2018 together with the supporting affidavit. The court has also perused the grounds of opposition and the replying affidavit by the Respondent.
2. The said application for stay pending appeal is hereby dismissed for the simple reason that the Applicant has not demonstrated that the Respondent is a man of straw and is incapable of refunding the half decremental amount as ordered by the trial court to be paid to him.
3. Secondly I do not find the reasons advanced by the trial court as conditions for stay pending appeal so unreasonable.
4. The application is otherwise dismissed. The costs shall abide the appeal.
Orders accordingly.
Delivered, signed and dated at Kitale on this 29th day of October, 2018.
__________________
H.K. CHEMITEI
JUDGE
29/10/18
In the presence of:
Bisonga holding brief for Appellant.
No appearance for Sifuna
Court Assistant - Kirong
Ruling read in open court.