[2009] KEHC 1464 (KLR)
The court held that the appellants, having already obtained a stay of execution in the lower court subject to certain conditions, were required to seek a review of those terms in the same court if dissatisfied. Only upon refusal of such review could they properly approach the High Court by way of appeal. The...
Source-derived case information.
- Citation
- [2009] KEHC 1464 (KLR)
- Parties
- Appellant: Ezekiel Sirma; Appellant: Ben Kemboi; Respondent: Mark Letting
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 124 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Review of Court Orders, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Sirma
Appellant
Ben Kemboi
Appellant
Mark Letting
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of execution of interim orders pending appeal when similar relief was already granted by the lower court subject to conditions.
- 2 Whether the appellants should have sought review of the terms of stay in the lower court before approaching the High Court.
Ratio Decidendi
The court held that the appellants, having already obtained a stay of execution in the lower court subject to certain conditions, were required to seek a review of those terms in the same court if dissatisfied. Only upon refusal of such review could they properly approach the High Court by way of appeal. The application for a further stay of execution in the High Court was therefore premature and not procedurally appropriate. The court dismissed the application, emphasizing the need to follow the correct procedural steps when challenging interlocutory orders.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 124 of 2008
EZEKIEL SIRMA .....................................1ST APPELLANT
BEN KEMBOI .........................................2ND APPELLANT
VERSUS
MARK LETTING........................................RESPONDENT
RULING
Before me is an application by way of Notice of Motion brought by the Appellant for orders:-
(i) That there be stay of execution of the interim orders of stay issued on 12th March 2009.
(ii) That there be stay of execution pending the hearing and determination of Appeal No. 124 of 2008.
The application is based on the grounds as stated in the body of the Notice of Motion and supported by an affidavit sworn by the Applicant.
The facts which gave rise to this application as gathered from the affidavit evidence as well as the pleadings briefly may be stated.
By a Plaint filed in Court in the Chief Magistrate’s Court on 19th June 2006 Respondent sued the Applicant claiming damages both special and general arising out of a traffic road accident which occurred along Eldoret-Nakuru Road on 14th October 2004 involving the Applicant’s motor vehicle registration No. KAP 029 P. Liability was agreed by consent and was entered in the ratio of 80:20 in favour of the Respondent against the Applicants.
The suit proceeded to hearing for the assessment of damages which was assessed at Shs. 400,000/= apportioned at 80:20. Immediately Judgment was delivered the Applicant the Applied for stay of execution pending appeal which was granted on condition that half the decretal sum to be paid out to the Respondent and the other half to await the outcome of the Appeal.
The Applicants were aggrieved by the terms of the stay and filed this instant application to stay the execution of the interim orders as well as stay of execution pending the hearing and determination of the appeal.
The application is opposed by the Respondent on the ground that the Applicants having applied for stay of execution pending appeal and having obtained the orders he sought subject to certain conditions they cannot come to this Court seeking a similar order and before they have complied with the order they had secured in the lower Court.
I agree with the Respondent that the Applicants having secured the orders they sought in the lower Court, they ought to have applied for review of the terms of stay in the same Court and only come to this Court by way of appeal against refusal to review the terms if they felt that the same were harsh.
The Appellants’ application therefore fails and the same is dismissed with costs to the Respondent.
DATED AT ELDORET THIS 27TH DAY OF OCTOBER, 2009.
J. L. A. OSIEMO
JUDGE