[2020] KEHC 9705 (KLR)
The court found that releasing the principal sum to the applicant before the determination of the appeal would render the respondent's appeal an academic exercise, effectively prejudicing the respondent's right to have the appeal heard and determined. While the applicant's medical condition and urgency were...
Source-derived case information.
- Citation
- [2020] KEHC 9705 (KLR)
- Parties
- Plaintiff: Fred Onyonyi Nyabuto; Defendant: Kimani Walter Alias Walter Ngugi Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 358 of 2014
- Procedural Posture
- Civil Application / Ruling on Application for Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Execution Pending Appeal, Stay of Execution, Medical Emergency, Costs Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Onyonyi Nyabuto
Plaintiff
Kimani Walter Alias Walter Ngugi Kimani
Defendant
Procedural Posture
Civil Application / Ruling on Application for Execution Pending Appeal
Legal Issues
- 1 Whether the applicant should be allowed to execute the principal judgment sum pending taxation and appeal.
- 2 Whether the applicant's medical condition justifies urgent access to the judgment sum.
- 3 Whether releasing the principal sum would prejudice the respondent's right of appeal.
Ratio Decidendi
The court found that releasing the principal sum to the applicant before the determination of the appeal would render the respondent's appeal an academic exercise, effectively prejudicing the respondent's right to have the appeal heard and determined. While the applicant's medical condition and urgency were acknowledged, the court held that these circumstances did not outweigh the need to preserve the subject matter of the appeal. The existence of a pending application before the Court of Appeal and the uncontroverted evidence of a filed Notice of Appeal further supported the decision to dismiss the application. The court thus exercised its discretion to refuse execution pending appeal,...
Court Disposition
application dismissed
Orders
- The application dated 15th October, 2019 is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 358 OF 2014
FRED ONYONYI NYABUTO.....................................................PLAINTIFF
VERSUS
KIMANI WALTERAliasWALTER NGUGI KIMANI.........DEFENDANT
RULING
1. The application dated 15th October, 2019 principally seeks orders that the Applicant be allowed to execute the principal amount to enable him urgently access the same to assist him proceed abroad for advanced specialized medical treatment and management in good time.
2. Secondly that costs await the outcome of taxation slated for 11th February, 2020.
3. It is stated that the grounds and the affidavit in support of the application that the Applicant is paraplegic and in dire need of specialized medical treatment and management abroad. That the Applicant requires to access the fruits of his judgment for the purposes of the said medical treatment and management. It is further averred that the date for the taxation of the costs herein is far off, hence the second prayer herein.
4. The application is opposed. It is stated in the replying affidavit that no sufficient reasons have been disclosed for the application to be allowed. That the Notice of Appeal has been filed by the Respondent and that a similar application has been filed before the Court of Appeal. The Respondent’s stand is that the application herein is meant to frustrate his Appeal.
5. The parties agreed to canvass the application by way of written submissions. The Applicant filed his but the Respondent did not file any.
6. I have considered the application, the response to the same and the submissions filed.
7. The uncontroverted evidence from the Respondent is that they have filed an Appeal against the judgment herein. The Notice of Appeal has been exhibited herein. It is also apparent that the Applicant herein has filed an application before the court of Appeal seeking orders that the Notice of Appeal be struck out. Given, the matters before the Court of Appeal can go either way.
8. Without lack of empathy for the Applicant herein, this court’s view is that the release of the principal sum herein will render the Appeal an academic exercise. Consequently, this court will await the decision of the court of Appeal. The application is therefore dismissed with costs in cause.
Dated, signed and delivered in Nairobi this 29th day of May, 2020
B. THURANIRA JADEN
JUDGE