[2011] KECA 153 (KLR)
The Court of Appeal found that the intended appeal was arguable and that, if a stay of execution was not granted, the appeal would be rendered nugatory. The court was satisfied that the applicants had met the threshold for the grant of a stay of execution pending appeal. Accordingly, the court allowed the...
Source-derived case information.
- Citation
- [2011] KECA 153 (KLR)
- Parties
- Applicant: Clement Kungu Waibara; Applicant: Charles Mararo Njoroge; Applicant: The Interim Independent Electoral Commission; Respondent: Benard Chege Mburu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 212 of 2011
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Election Petition Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Kungu Waibara
Applicant
Charles Mararo Njoroge
Applicant
The Interim Independent Electoral Commission
Applicant
Benard Chege Mburu
Respondent
Procedural Posture
Stay Application / 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 intended appeal.
- 2 Whether the intended appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The Court of Appeal found that the intended appeal was arguable and that, if a stay of execution was not granted, the appeal would be rendered nugatory. The court was satisfied that the applicants had met the threshold for the grant of a stay of execution pending appeal. Accordingly, the court allowed the application and ordered a stay of execution of the judgment and decree of the High Court for a period of two months, within which the intended appeal should be filed, heard, and determined. The court further clarified that the order would lapse automatically at the end of the two months unless otherwise extended, and that the ruling was made on the assumption that the relevant...
Court Disposition
application allowed
Orders
- Stay of execution of the judgment and decree of Ochieng, J. dated 26th August, 2011 is granted for a period of two months from 8th September, 2011.
- The intended appeal shall be filed, heard, and determined within the said two months.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, AGANYANYA & VISRAM, JJ.A.)
CIVIL APPLICATION NO. NAI 212 OF 2011 (UR 137/2011)
BETWEEN
1. CLEMENT KUNGU WAIBARA
2. CHARLES MARARO NJOROGE
3. THE INTERIM INDEPENDENTELECTORAL COMMISSION...APPLICANTS
AND
BENARD CHEGE MBURU..............................................................RESPONDENT
(Application for stay of execution pending the hearing of the appeal from the judgment of the High Court of Kenya at Nairobi (Ochieng, J.) dated 26th August, 2011
H.C. Election Petition No. 24 of 2008)
***************
RULING OF THE COURT
Having read the record before us, and having heard arguments by counsel for all the parties, we are persuaded that the intended appeal herein is arguable, and indeed will be rendered nugatory if the orders sought in the application before us are not granted.
Accordingly, we allow the application and order stay of execution of the judgment and decree of Ochieng, J. dated 26th August, 2011 for a period of two (2) months from today, within which time the intended appeal shall be filed, heard and determined.
This order, unless otherwise extended by the Court, shall automatically lapse at the end of the said two months.
This ruling is delivered on the assumption that the Certificate pursuant to Section 30(1) of the National Assembly & Presidential Elections Act has not been signed and served upon the Speaker of the National Assembly as at 12. 00 noon today, 8th September, 2011.
Dated and delivered at Nairobi this 8th day of September, 2011
R.S.C. OMOLO
……………………...
JUDGE OF APPEAL
D. K. S. AGANYANYA
……………………...
JUDGE OF APPEAL
ALNASHIR VISRAM
……………………...
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR