[2023] KEHC 26365 (KLR)
The court held that since the appeal had not yet been admitted for hearing and no directions had been taken regarding its hearing, the application for stay of execution was premature. Granting such an application at this stage would be procedurally improper and tantamount to putting the cart before the horse. The...
Source-derived case information.
- Citation
- [2023] KEHC 26365 (KLR)
- Parties
- Appellant: Ekale Morris Eyanai; Appellant: Titus Kibiwot; Respondent: Paul Kepkemi Yebei
- Court
- High Court
- Court Station
- High Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E011 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application struck out and dismissed as premature
- Judges
- JR Karanja
- Legal Topics
- Stay of Execution, Appeal Admission, Prematurity of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ekale Morris Eyanai
Appellant
Titus Kibiwot
Appellant
Paul Kepkemi Yebei
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution is premature before the appeal is admitted for hearing.
- 2 Whether the court should grant a stay of execution pending appeal in the circumstances.
Ratio Decidendi
The court held that since the appeal had not yet been admitted for hearing and no directions had been taken regarding its hearing, the application for stay of execution was premature. Granting such an application at this stage would be procedurally improper and tantamount to putting the cart before the horse. The proper course is for the appellants to await the admission of the appeal to hearing before seeking a stay of execution. Accordingly, the application was struck out and dismissed, with liberty to file a fresh application if the need arises after the appeal is admitted for hearing.
Court Disposition
application struck out and dismissed as premature
Orders
- The application dated 22nd June, 2023 is struck out and dismissed.
- Liberty is granted to the applicants to file a fresh similar application upon admission of the main appeal to hearing if the need arises.
Full Case Text
Judgment text and source record
19 paragraphs
Eyanai & another v Yebei (Civil Appeal E011 of 2023) [2023] KEHC 26365 (KLR) (7 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26365 (KLR)
Republic of Kenya
In the High Court at Kapsabet
Civil Appeal E011 of 2023
JR Karanja, J
December 7, 2023
Between
Ekale Morris Eyanai
1st Appellant
Titus Kibiwot
2nd Appellant
and
Paul Kepkemi Yebei
Respondent
Ruling
1. The application dated 22nd June, 2023 is for stay of execution pending the hearing and determination of the appeal against the judgment and decree of the lower court in Kapsabet PMCC NO. E63 of 2021 featuring the Applicants/ Appellants as the defendant and the Respondent as the Plaintiff.The impugned judgment was delivered in favour of the Respondent on 23rd May 2023 with an award of damages in the sum of Kshs. 737,250/- made up of Kshs. 700,000/- general damages and 37,250 special damages.Being aggrieved, the Appellants preferred the seven (7) grounds of appeal set out in the memorandum of appeal filed herein on 9th June, 2023 praying for the setting aside of the impugned judgment. In the meantime, the Appellants filed the present application.
2. However, the appeal although duly filed is yet to be admitted to hearing and direction taken with regard to a hearing date and mode of hearing. In the circumstances, the present application is rendered premature for the purposes of the orders sought and it is tantamount to putting the cart before the horse.The Application must therefore and is hereby struck out and dismissed with liberty being granted to the Applicants to file a fresh similar application upon admission of the main appeal to hearing if the need arises.Otherwise, the Respondent shall have the costs of the application.Ordered accordingly.
DATED AND DELIVERED THIS 7TH DAY OF DECEMBER, 2023J. R. KARANJAH,JUDGE