[1998] KECA 242 (KLR)
The court found that the applicant had not been given an opportunity to defend himself in the originating summons proceedings, as the hearing was conducted before the expiry of the period for entering appearance and the applicant's request for time to file a replying affidavit was rejected. This denial of a fair...
Source-derived case information.
- Citation
- [1998] KECA 242 (KLR)
- Parties
- Applicant: Geoffrey Orao Obura; Respondent: Martha Karambu Koome
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 258 of 1998
- Procedural Posture
- Civil Application / Ruling on Stay Application Pending Appeal
- Outcome
- motion for stay of execution allowed
- Legal Topics
- Stay of Execution, Right to Be Heard, Ex Debito Justitiae, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Geoffrey Orao Obura
Applicant
Martha Karambu Koome
Respondent
Procedural Posture
Civil Application / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant was denied an opportunity to defend himself in the originating summons proceedings.
- 2 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 3 Whether the appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The court found that the applicant had not been given an opportunity to defend himself in the originating summons proceedings, as the hearing was conducted before the expiry of the period for entering appearance and the applicant's request for time to file a replying affidavit was rejected. This denial of a fair hearing constituted an arguable point on appeal and may entitle the applicant to have the judgment set aside ex debito justitiae. Furthermore, the court accepted that if the applicant were compelled to pay the money to the respondent before the appeal was heard, the appeal could be rendered nugatory if successful. Accordingly, the court exercised its discretion to grant a stay of...
Court Disposition
motion for stay of execution allowed
Orders
- The order of the judge dated 30th September, 1998 is stayed until the intended appeal is heard and determined.
- The costs of this application shall be costs in the intended appeal.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, OWUOR & O'KUBASU JJ.A)
CIVIL APPLICATION NO.NAI.258 OF 2001
BETWEEN
GEOFFREY ORAO OBURA ..................................APPLICANT
AND
MARTHA KARAMBU KOOME ................................RESPONDENT
RULING OF THE COURT
The applicant clearly has an arguable appeal. By the originating summons filed in court on the 15th September, 1998 the applicant was asked to enter appearance within 15 days to the said summons. On the 30th September, 1998 the respondent was hauled before the learned judge for the hearing of the summons itself. On that day, even the 15 days for entering appearance had not run out. The applicant asked for time to file a replying affidavit. The judge rejected that application. The truth is that the applicant had not been given an opportunity to defend himself - even if his case was thought to be hopeless, he was nevertheless entitled to put the case before the court. He appears to have been denied the chance to defend and that is clearly an arguable point and may well entitle the applicant to have the judgment set aside ex debito justitiae . We think it would be right to grant a stay in the circumstances and we do so. The respondent herself deponed in the replying affidavit dated the 6th November, 1998 at paragraph 11
"THAT my client Bank is specially vulnerable in the present economic climate and a grant of stay of execution to the applicant unfairly threatens its operations and customer funds."
That may well be evidence that if the applicant were to pay the money to the respondent, his appeal, if successful, may be rendered nugatory.
We accordingly allow this motion and order that the order of the judge dated the 30th September, 1998 be and is hereby stayed until the intended appeal shall have been heard and determined. The costs of this application shall be costs in the intended appeal.
Dated and delivered at Nairobi this 9th day November,
1998.
R. S. C. OMOLO ...............
JUDGE OF APPEAL
A. B. SHAH ...............
JUDGE OF APPEAL
E. OWUOR ...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR