[2020] KEHC 7561 (KLR)
The court determined that, in the interest of justice and to maintain orderliness, it would not address the merits or demerits of the issues raised at this interlocutory stage. Instead, the court ordered that the status quo be preserved by staying execution of the committal order, subject to the applicant setting...
Source-derived case information.
- Citation
- [2020] KEHC 7561 (KLR)
- Parties
- Appellant: Gabriel Ngesa Musundi; Respondent: Gabriel Fwaya Advocate
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 10 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- KW Kiarie
- Legal Topics
- Stay of Execution, Civil Jail, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Ngesa Musundi
Appellant
Gabriel Fwaya Advocate
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the orders committing him to civil jail pending appeal.
- 2 Whether the applicant was wrongly committed to civil jail without being heard.
Ratio Decidendi
The court determined that, in the interest of justice and to maintain orderliness, it would not address the merits or demerits of the issues raised at this interlocutory stage. Instead, the court ordered that the status quo be preserved by staying execution of the committal order, subject to the applicant setting down the appeal for hearing within 30 days and depositing the taxed sum in court within the same period. Failure to comply would entitle the respondent to proceed with execution. This approach balances the applicant's right to appeal and the respondent's right to enforce the judgment, pending a full hearing of the appeal.
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Status quo to be preserved until hearing and determination of the appeal.
- Applicant to set down the appeal for hearing within 30 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL APPEAL NO.10 OF 2019
BETWEEN
GABRIEL NGESA MUSUNDI.............APPELLANT/APPLICANT
AND
GABRIEL FWAYA ADVOCATE...............................RESPONDENT
RULING
1. Gabriel Ngesa Musundi the appellant herein, brought an application by way of Notice of Motion under sections 38 & 42(2) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure rules. He is seeking the following orders:
a) That this matter be certified urgent. (Spent)
b) That production order in respect of the applicant be issued. (spent)
c) Committal to jail of the applicant be stayed until the hearing of this application. (spent)
d) Pending the hearing of this appeal, execution of orders of 16th May 2019 be stayed.
2. The application is premised on the following grounds:
a) That the applicant was wrongly committed in civil jail.
b) That he was committed to civil jail unheard.
3. The application was opposed on the following grounds:
a) That the appeal which is the basis of the application is incompetent.
b) That the application is an abuse of the due process of the court.
c) That the application is misconceived and calculated to prejudice and embarrass the respondent.
4. I have perused the submissions by both parties and what is emerging therefrom, is that the same reasons which are being advanced for the application are the same reasons that the appellant raised as grounds of appeal. In the interest of justice and for the sake of tidiness, my opinion is that I will not comment on merits or demerits of any issues raised. I will make an order for status quo to be preserved until the hearing and determination of this appeal subject to the following conditions:
a) The applicant to set down the appeal for hearing within 30 days.
b) That the applicant deposits in court the taxed sum of Kshs. 57,107/= within 30 days.
Failure to meet these conditions the respondent will be at liberty to execute.
5. The costs of this application will abide with the outcome of the appeal.
DELIVERED AND SIGNED AT BUSIA THIS 11TH DAY OF MARCH, 2020
KIARIE WAWERU KIARIE
JUDGE