[2000] KECA 171 (KLR)
The court found that the application for stay was not supported by the affidavit as required, and the record was so confusing that it was impossible to establish what order was the real subject of the application. In the absence of clear and sufficient grounds, and with procedural confusion, the court was compelled...
Source-derived case information.
- Citation
- [2000] KECA 171 (KLR)
- Parties
- Applicant: George Omondi Odek; Respondent: Jagdish Kotecha; Respondent: Midland Emporium
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 331 of 1999
- Procedural Posture
- Stay Application / Application for Stay Pending Appeal
- Outcome
- Application dismissed with costs to the respondents.
- Judges
- RO Kwach, AM Akiwumi, EO O'Kubasu
- Legal Topics
- Stay of Execution, Appeals Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Omondi Odek
Applicant
Jagdish Kotecha
Respondent
Midland Emporium
Respondent
Procedural Posture
Stay Application / Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for grant of stay of orders pending appeal.
- 2 Whether failure to grant stay would render the intended appeal nugatory.
- 3 Whether the application is supported by proper affidavit evidence.
Ratio Decidendi
The court found that the application for stay was not supported by the affidavit as required, and the record was so confusing that it was impossible to establish what order was the real subject of the application. In the absence of clear and sufficient grounds, and with procedural confusion, the court was compelled to dismiss the application. The applicant failed to meet the threshold for grant of stay pending appeal.
Court Disposition
Application dismissed with costs to the respondents.
Orders
- The application for stay is dismissed.
- Costs assessed at KES 5,000 to be paid to the respondents within 7 days, failing which execution to issue.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: KWACH, AKIWUMI & O'KUBASU, JJ.A.
CIVIL APPLICATION NO. NAI 331 OF 1999 (UR 130/99)
BETWEEN
GEORGE OMONDI ODEK ........................................APPLICANT AND JAGDISH KOTECHA MIDLAND EMPORIUM .....................................RESPONDENTS
(Application for stay of orders pending hearing and determination of an intended appeal from the ruling of the High Court of Kenya at Kisumu (Birech C/Assize) dated 22nd October, 1999 in H.C.C.C. NO. 321 OF 1999) **************** RULING OF THE COURT
The present application for stay on the grounds, inter alia, that failure to grant it will render the intended appeal nugatory, is not supported at all by the supporting affidavit. Furthermore, the proceedings included in the record before us is so confusing that it is impossible to establish what order is the real subject of the present application. In the circumstances, we are constrained to dismiss the application with costs for the respondents assessed at 5,000/= to be paid within 7 days from today failing which, execution to issue.
Dated and delivered at Kisumu this 21st day of March, 2000.
R. O. KWACH
JUDGE OF APPEAL
A. M. AKIWUMI
JUDGE OF APPEAL
E. O. O'KUBASU
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR