[2010] KEHC 3264 (KLR)
The court held that since the applicant's application for injunction was dismissed by the lower court, the only order resulting from that dismissal is not capable of execution. Therefore, there is no positive order to be stayed except as to costs. The application for stay of execution must fail as the court lacks...
Source-derived case information.
- Citation
- [2010] KEHC 3264 (KLR)
- Parties
- Appellant: David Andanje; Respondent: Nakuru Water & Sanitation Services Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 171 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- SP Ouko
- Legal Topics
- Stay of Execution, Injunctions, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Andanje
Appellant
Nakuru Water & Sanitation Services Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a stay of execution where the lower court dismissed an application for injunction.
- 2 Whether any positive order exists capable of being stayed after dismissal of the application for injunction.
Ratio Decidendi
The court held that since the applicant's application for injunction was dismissed by the lower court, the only order resulting from that dismissal is not capable of execution. Therefore, there is no positive order to be stayed except as to costs. The application for stay of execution must fail as the court lacks jurisdiction to grant such an order in these circumstances.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Appeal 171 of 2009
DAVID ANDANJE..........................APPELLANT/APPLICANT
VERSUS
NAKURU WATER &SANITATIONSERVICES LTD.........................RESPONDENT
RULING
The applicant’s application for an injunction to the court below was dismissed and being aggrieved by that dismissal, he has preferred an appeal to this court. In the meantime he has filed this application for stay of execution pending the determination of the appeal.
The respondent has opposed the application on the grounds that it is bad in law, inept, misconceived and incompetent in that this court lacks jurisdiction to grant order sought.
There are enough authorities for the proposition that where a matter is dismissed, the court cannot grant an order for stay of execution (except for costs) and by that dismissal, the court will not have made any positive order requiring the applicant to do something capable of being stayed.
See Kimakia Bus Services Ltd. Vs. Electrocom International Ltd, Civil Application No.NAI. 63 of 1984.
In the matter before me, the applicant’s application for injunction having been dismissed, the only order that flows from that dismissal is incapable of execution and the applicant can only seek to stay execution of orders as to costs.
For these reasons, the application must fail and is hereby dismissed with costs.
Dated, Signed and Delivered at Nakuru this 5th day of February, 2010.
W. OUKO
JUDGE