[2001] KEHC 806 (KLR)
The court held that for a stay of execution to be granted under Order 41 rule 4 of the Civil Procedure Rules, there must be an appeal in existence. The mere filing of a notice of appeal does not suffice for the High Court to grant a stay; such notice only operates as an appeal when the matter is before the Court of...
Source-derived case information.
- Citation
- [2001] KEHC 806 (KLR)
- Parties
- Applicant: Daniel Matheka Muatine; Applicant: Mary Mutua; Respondent: Redempta Ndumi Kyale; Respondent: Mary Mbithe Muthee
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 307 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Appeals Process, Notice of Appeal, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Matheka Muatine
Applicant
Mary Mutua
Applicant
Redempta Ndumi Kyale
Respondent
Mary Mbithe Muthee
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether a stay of execution can be granted where no appeal is in existence.
- 2 Whether a notice of appeal suffices for purposes of stay in the High Court under Order 41 rule 4 Civil Procedure Rules.
Ratio Decidendi
The court held that for a stay of execution to be granted under Order 41 rule 4 of the Civil Procedure Rules, there must be an appeal in existence. The mere filing of a notice of appeal does not suffice for the High Court to grant a stay; such notice only operates as an appeal when the matter is before the Court of Appeal. Since the applicants had not filed an appeal, their application for stay was premature and could not be entertained. The application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISCELLANEOUS APPLICATION NO. 307 OF 2000
1. DANIEL MATHEKA MUATINE :::::::::::::::::::::::::::::: 1 ST APPLICANT
2. MARY MUTUA ::::::::::::::::::::::::::::::::::::::::::::::::::::::: 2 ND APPLICANT
VERSUS
1. REDEMPTA NDUMI KYALE :::::::::::::::::::::::::::: 1 ST RESPONDENT
2. MARY MBITHE MUTHEE :::::::::::::::::::::::::::::::: 2 ND RESPONDENT
Coram: J. W. Mwera J.
Mativo Advocate for Applicants
Kitonga for Mutunga Advocate for Respondents
C.C. Muli
************************
R U L I N G
By a notice of motion dated 30. 10. 2000 and brought under O.41 r 4 (1) (2) (6) Civil Procedure Rules the applicants in KANGUNDO RMCC Nos. 1027, 1029 of 1999 pray for a stay of execution in those 2 files that apparently were consolidated and 20 disposed of together.
The grounds on which Mr. Mativo argued the application were that his client did not know what was going on in the two cases which were being handled by an advocate who was appointed by his insurer. He only came to know of what transpired when execution and attachment surprised him.
That the applicant was intending to appeal and argue that the awards in the two suits were excessive and that a minor was involved in CC.1029/99 yet there was no compliance with O.31 Civil Procedure Rules i.e. the usual accompanying consent to the plaint was omitted.
That the applicant had filed and served a notice of appeal and was ready with 10 certified proceedings to draft and file the appeal(s). A copy of notice of appeal dated 15. 8.2000 was annexed as Exh. B but it was not shown that it was served on the Respondent’s lawyers. A draft memorandum of appeal was exhibited – MAMEED “C”. Further that the applicants would deposit a reasonable part of the decretal sums in court.
Mr. Kitonga only put up one point – O.41 r X Civil Procedure Rules envisaged that for a stay to fall to be considered, an appeal ought to be in existence. That there was none in existence here and thus this application was premature.
With all respect to Mr. Mativo’s valiant attempts to get the stay orders, this court is minded to incline to Mr. Kitonga’s standpoint. There is no appeal in existence and that is what O.41 r. 1 envisages. It says in pertinent parts:
“4(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from …………”
So an appeal must be in place. A notice of appeal, if one is properly filed only operates when the matter is going to the Court of Appeal see O.41 r.4(4)
“(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given.”
In sum this application is dismissed with costs.
Orders accordingly.
Delivered on 22nd March 2001
J. W. MWERA
JUDGE