[2021] KEHC 684 (KLR)
The court found that the appellant had filed the appeal within the statutory period and that the interests of justice required the maintenance of the status quo to facilitate the hearing and determination of the appeal. The court exercised its discretion to grant a stay of execution, conditional upon the appellant...
Source-derived case information.
- Citation
- [2021] KEHC 684 (KLR)
- Parties
- Appellant: Eden Millers; Respondent: Phylis Swali Wakhungu; Respondent: Kasune Enterprise Limited; Respondent: Andrew Omuhaka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2019
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Application for stay of execution pending appeal allowed, subject to conditions.
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Appeals Process, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eden Millers
Appellant
Phylis Swali Wakhungu
Respondent
Kasune Enterprise Limited
Respondent
Andrew Omuhaka
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether a stay of execution pending appeal should be granted.
- 2 Whether the appellant has complied with the procedural requirements for stay of execution.
Ratio Decidendi
The court found that the appellant had filed the appeal within the statutory period and that the interests of justice required the maintenance of the status quo to facilitate the hearing and determination of the appeal. The court exercised its discretion to grant a stay of execution, conditional upon the appellant depositing the entire judgment sum in court within thirty days. This approach ensures that the rights of both parties are protected pending the outcome of the appeal, and that the appeal is not rendered nugatory by premature execution.
Court Disposition
Application for stay of execution pending appeal allowed, subject to conditions.
Orders
- Stay of execution granted pending appeal.
- Appellant to deposit the entire judgment sum in court within thirty days of the order.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO. 53 OF 2019
(An appeal from the judgment of Hon. FM Nyakundi, Senior Resident Magistrate, in Mumias SPMCCC No. 288 of 2012, delivered on 29th April 2019)
EDEN MILLERS .................................................APPELLANT
VERSUS
PHYLIS SWALI WAKHUNGU.................1ST RESPONDENT
KASUNE ENTERPRISE LIMITED........2ND RESPONDENT
ANDREW OMUHAKA..............................3RD RESPONDENT
RULING
1. What I am called upon to determine is an application dated 18th September 2019, for stay of execution pending appeal.
2. The impugned judgment was delivered on 29th April 2019, and the memorandum of appeal herein was lodged on 28th May 2019, within the thirty days allowed in law.
3. The original trial records of the trial court have been availed, complete with three copies of the proceedings and judgment duly typed, and the judgment certified. For all practical purposes the stage is set for the hearing of the appeal.
4. I believe justice of the situation favours status quo being maintained, to facilitate the hearing and disposal of the appeal, for an aggrieved party is entitled to a second opinion from an appellate court.
5. Consequently, I do hereby allow the application dated 18th September 2019, on the terms proposed. The stay order shall be on condition that the appellant deposits the entire judgment in court within the next thirty days of the date of this order.
6. The appellant shall file record of appeal within thirty days, after which the Deputy Registrar shall cause the appeal to be listed for directions on disposal.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER, 2021
W. MUSYOKA
JUDGE
In the presence of:-
Erick Zalo – Court Assistant
Mr. Mutoka for Mr. Billy Amendi for Appellant