[2020] KECA 528 (KLR)
The Court found that the proceedings leading to the judgment were acrimonious and protracted, and that the applicant had demonstrated apprehension regarding imminent execution. The respondent, being elderly and ailing, was also anxious to realize the benefit of the judgment. In balancing the interests of both...
Source-derived case information.
- Citation
- [2020] KECA 528 (KLR)
- Parties
- Applicant: Gabriel Nguyo Ngari; Respondent: Lucy Njeri Nguyo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 120 of 2020
- Procedural Posture
- Civil Application / Application for Certification of Urgency and Stay of Execution
- Outcome
- Application for certification of urgency allowed.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Urgency Certification, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Nguyo Ngari
Applicant
Lucy Njeri Nguyo
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency and Stay of Execution
Legal Issues
- 1 Whether the applicant's motion for stay of execution should be certified as urgent.
- 2 Whether the circumstances justify prioritizing the hearing of the stay application.
Ratio Decidendi
The Court found that the proceedings leading to the judgment were acrimonious and protracted, and that the applicant had demonstrated apprehension regarding imminent execution. The respondent, being elderly and ailing, was also anxious to realize the benefit of the judgment. In balancing the interests of both parties and in the interest of justice, the Court held that the motion for stay of execution should be certified as urgent to allow for prompt determination of the substantive application and to avoid prejudice to either party.
Court Disposition
Application for certification of urgency allowed.
Orders
- The applicant's notice of motion dated 14th May, 2020 is certified as urgent.
- The motion may be given a hearing date and heard on priority.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OKWENGU JA (IN CHAMBERS)
CIVIL APPLICATION NO. NAI 120 OF 2020
BETWEEN
GABRIEL NGUYO NGARI.......APPLICANT
AND
LUCY NJERI NGUYO...........RESPONDENT
(Being an application for certification as urgent Notice of Motion dated 14th May 2020 seeking stay of execution of the judgment and decree/order of the High Court of Kenya at Nairobi (M. Kasango, J) dated 28thApril, 2020inH. C. Milimani Commercial No. 231 of 2016
**********************
RULING
[1] The applicant filed a notice of motion dated 14th May, 2020 seeking orders of stay of execution under Rule 5(2)(b) of the Court Rules. The motion was accompanied by a certificate and an affidavit in which the applicant’s advocate A. P. Ochieng Ogutu urged the Court to certify the motion as urgent.
[2] The motion was placed before me for certification but upon considering the affidavit, I declined to certify the motion as urgent.
[3] By a letter dated 28th May, 2020, the applicant through his advocate applied to have the issue of urgency determined through inter parte hearing. Due to the Corvid-19 Pandemic, the parties were directed to file written submissions and the matter was placed before me to determine the issue of urgency inter parte on the basis of those written submissions.
[4] I have considered the written submissions that have been filed by each parties’ advocate, and it is evident that the proceedings leading to the judgment sought to be stayed have been very acrimonious and have taken a long time. The applicant is apprehensive that the respondent will proceed to execute the judgment. The correspondences exhibited confirm that the respondent is an old lady who is ailing and is therefore anxious to reap the benefit of the judgment that was made in her favour. It is therefore in the interest of both parties that the motion be certified as urgent so that the motion is heard and the issue of execution resolved by this Court without undue delay.
[5] In the circumstances I certify the applicant’s notice motion dated 14th May, 2020 as urgent. The motion may be given a hearing date and heard on priority.
Dated and delivered at Nairobi this 10thday of July, 2020.
HANNAH OKWENGU
…………………….
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
Signed
DEPUTY REGISTRAR