[1997] KECA 234 (KLR)
The Court held that while there may be an arguable point regarding the amount awarded for the value of cattle, the applicant failed to demonstrate that the appeal would be rendered nugatory if stay was not granted. The respondent was found to be financially capable of refunding any sums paid should the appeal...
Source-derived case information.
- Citation
- [1997] KECA 234 (KLR)
- Parties
- Applicant: Francis Mwaniki Mathenge; Respondent: Jackson Mugo Mathai
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 414 of 1996
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Appealability, Nugatory Appeal Test
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwaniki Mathenge
Applicant
Jackson Mugo Mathai
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the applicant has demonstrated arguable points to be canvassed in the intended appeal.
- 2 Whether the appeal would be rendered nugatory if stay of execution is not granted.
Ratio Decidendi
The Court held that while there may be an arguable point regarding the amount awarded for the value of cattle, the applicant failed to demonstrate that the appeal would be rendered nugatory if stay was not granted. The respondent was found to be financially capable of refunding any sums paid should the appeal succeed. Therefore, the application for stay of execution was dismissed as the applicant did not satisfy both limbs required for the grant of stay.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, SHAH & LAKHA, JJ.A.)
CIVIL APPLICATION NO. NAI. 414 OF 1996 (UR.159/96)
BETWEEN
FRANCIS MWANIKI MATHENGE ......................... APPLICANT
AND
JACKSON MUGO MATHAI .............................. RESPONDENT
(Application for stay of execution in an intended Appeal
from a Judgment and Decree of the High Court of
Kenya at Nakuru (Justice Rimita) dated
24th September, 1996
in
H.C.C.C. NO. 266 OF 1977)
************
RULING OF THE COURT
If the applicant is to succeed in his application for stay of the judgment of Rimita J, he must not only show that there are arguable points to be canvassed at the hearing of the intended appeal, but also that the appeal if successful, would be rendered nugatory in this case, that the respondent will not be able to disgorge what he had obtained execution of the judgment.
The applicant says that the learned judge of the superior court erred in amending the plaint in the absence of his advocate. But the fault for this lay with the applicant himself. It was also submitted that the figure of 20,000/- per head of cattle awarded by the learned judge was not based on any reasonable evidence. This figure is much less than what was claimed by the respondent in his plaint but is not based on any evidence adduced at the trial. This could give rise to an arguable point at the hearing of the appeal as to the amount of the value of the respondent's cattle taken away by the applicant. But would the appeal be nugatory if stay is not granted? In this regard, it has been urged on behalf of the applicant, and this is not at all apt, that this applicant would be rendered a pauper if the threatened execution is not stayed. What in our view is more pertinent is whether the respondent and not the applicant will not be able to refund to the applicant upon his appeal succeeding, what the applicant had lost in the execution of the judgment against him.
On the evidence before the learned judge and also before us, the respondent is not a man of straw and appears to be a person capable of making appropriate refund to the applicant should he succeed in his appeal.
For all the reasons that we have set out hereinbefore, the present application will be dismissed with costs to the respondent. It is so ordered.
Dated and delivered at Nairobi this 22nd day of January, 1997.
A. M. AKIWUMI
.................
JUDGE OF APPEAL
A. B. SHAH
..................
JUDGE OF APPEAL
A. A. LAKHA
...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.