[2021] KEHC 9170 (KLR)
The court found that, although the respondent had a judgment in his favour, the appellant had promptly filed a Notice of Appeal and demonstrated an intention to pursue the appeal. In balancing the interests of both parties, the court granted a limited stay of execution for 45 days to allow the appellant to move the...
Source-derived case information.
- Citation
- [2021] KEHC 9170 (KLR)
- Parties
- Appellant: Co-operative Bank of Kenya Ltd; Respondent: Ngera Muthami t/a Rozina Transporters
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 699 of 2017
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed for 45 days; each party to bear own costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeal Process, Jurisdiction After Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Bank of Kenya Ltd
Appellant
Ngera Muthami t/a Rozina Transporters
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of execution pending appeal after a Notice of Appeal has been filed.
- 2 Whether the High Court retains jurisdiction to entertain a stay application once a Notice of Appeal is lodged.
- 3 How to balance the interests of the successful respondent and the appellant seeking to appeal.
Ratio Decidendi
The court found that, although the respondent had a judgment in his favour, the appellant had promptly filed a Notice of Appeal and demonstrated an intention to pursue the appeal. In balancing the interests of both parties, the court granted a limited stay of execution for 45 days to allow the appellant to move the Court of Appeal for appropriate relief. The court emphasized that, upon lodging the Notice of Appeal, it became functus officio and could not entertain further applications of this nature. Each party was ordered to bear its own costs.
Court Disposition
Application for stay of execution allowed for 45 days; each party to bear own costs.
Orders
- Stay of execution granted for 45 days from the date of the ruling.
- Applicant to move the Court of Appeal within the 45-day period for further relief.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 699 OF 2017
CO-OPERATIVE BANK OF KENYA LTD......................APPELLANT
VERSUS
NGERA MUTHAMI T/A
ROZINA TRANSPORTERS ........................................... RESPONDENT
RULING
This is an application by way of Notice of Motion under Order 46 Rule 6, Order 22 Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3,3A, and 63 (e) of the Civil Procedure Act for the substantive order that there be a stay of execution in this matter following the judgment delivered by C. Kariuki J on 29th November, 2019.
It is supported by grounds set out on the face of the application and a supporting affidavit sworn by one Lawrence Karanja, a legal officer at the appellant’s office. The application is opposed and there are grounds of opposition filed on behalf of the respondent, followed by a supplementary affidavit sworn by the same Lawrence Karanja on behalf of the appellant. Parties have filed submissions addressing the application which I have considered alongside the authorities cited.
Following the judgment of the High Court aforesaid, the applicant filed a Notice of Appeal dated 13th December,2019 in the Court of Appeal under Rule 74 of the Court of Appeal Rules. This application was filed on 31st January, 2020. It is clear that the appellant did not waste any time to demonstrate the desire to be heard by the Court of Appeal.
It is not easy for this court to determine whether or not the appeal to the Court of Appeal is arguable. I believe that should be left to the court that will eventually be seized of this matter. I recognize the fact that the respondent has a judgment in his favour, while the applicant has the right to pursue the appeal in the Court of Appeal.
In balancing the interests of both parties, I am inclined to allow the application for stay limited to 45 days from the date of this ruling such that, the applicant shall have sufficient time to move the Court of Appeal under Rule 5 (2) (b) of the Court of Appeal Rules.
I take this step on my understanding that, once a Notice of Appeal has been lodged in the Court of Appeal the High Court is divested on any jurisdiction to deal with an application of this nature. That is to say, it is functus officio.
The foregoing shall be orders of this court and each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 11th day of February, 2021.
A. MBOGHOLI MSAGHA
JUDGE