[1996] KECA 25 (KLR)
The Court found that the applicant failed to satisfy the second condition for the grant of a stay of execution, namely, that the intended appeal would be rendered nugatory if a stay is not granted. This was because the respondents had given, and reaffirmed before the Court, an undertaking not to dispose of, sell,...
Source-derived case information.
- Citation
- [1996] KECA 25 (KLR)
- Parties
- Applicant: Gichuhi Kimira; Respondent: Samuel Ngunu Kimotho; Respondent: Simon Mugweru Wathirwa
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 243 of 1996
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JE Gicheru
- Legal Topics
- Stay of Execution, Appeal Procedure, Partnership Property
- 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
Gichuhi Kimira
Applicant
Samuel Ngunu Kimotho
Respondent
Simon Mugweru Wathirwa
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of a stay of execution under rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether the intended appeal would be rendered nugatory if a stay is not granted.
Ratio Decidendi
The Court found that the applicant failed to satisfy the second condition for the grant of a stay of execution, namely, that the intended appeal would be rendered nugatory if a stay is not granted. This was because the respondents had given, and reaffirmed before the Court, an undertaking not to dispose of, sell, alienate, or encumber the property in question. As a result, there was no risk of the substratum of the appeal being destroyed. Consequently, the Court found it unnecessary to consider whether the intended appeal was arguable and dismissed the application for stay of execution with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed.
- The applicant shall pay the costs of the application.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, OMOLO & LAKHA, JJ.A.)
CIVIL APPLICATION NO. NAI. 243 OF 1996 (88/96UR)
BETWEEN
GICHUHI KIMIRA..................................................APPLICANT
AND
SAMUEL NGUNU KIMOTHO
SIMON MUGWERU WATHIRWA...............RESPONDENTS
(An application for stay of further proceedings in HCCC 880 OF 1977 consolidated with 908 of 1977
pursuant to the Order of the (Hon. Justice Bosire) given at Nairobi on 3rd day of July, 1996 pending
the lodging and hearing of the intended Appeal from the whole of the Ruling and Order
in
H.C.C.C. NO. 880 OF 1977 (CONSOLIDATED WITH H.C.C.C. NO. 908 OF 1977)
**********************
RULING OF THE COURT
This is an application by the unsuccessful defendant under rules 5(2)(b) and 42 of the Court of Appeal Rules (the Rules) seeking an order for stay of execution of the Order given by the superior court (Bosire, J.) on July 3, 1996 pending the hearing and final determination of an intended appeal therefrom. The application is made upon the grounds that the intended appeal is not frivolous and that it would be rendered nugatory if a stay of the enforcement of the Order of the superior court is not granted.
In 1977 the respondents instituted two suits being High Court Civil Case No. 880 of 1977 and 908 of 1977 in which they sought declaration that the farm known as L.R. 13041 (the property) was partnership property held by the applicant in trust for them and also asked for dissolution of the partnership and taking of accounts. The two suits were consolidated, heard and decided in the respondents' favour. The applicant appealed against the whole of the said decision being Civil Appeal No. 186 of 1995 which is pending before this Court. His application for a stay of execution of the decree pending the hearing and determination of the appeal was unsuccessful. The respondents as plaintiff/decree holders applied to the superior court for orders set out in their application made by notice of motion and dated July 14, 1995 by way of steps in enforcement or execution of the decree given on October 6, 1989 and issued on March 30, 1990.
The principles on which this Court grants a stay under rule 5(2)(b) of the Rules are now well settled and need not be re-stated. It is said that the intended appeal would be rendered nugatory if a stay is not granted. We are not satisfied that in the circumstances of this case this is correct. There is already an undertaking by the respondents (pursuant to a Ruling of the superior court (Akiwumi, J.), as he then was, given on July 18, 1990) not to dispose, sell or otherwise alienate or encumber the property. This undertaking was confirmed before us by Mr. Kamau appearing on behalf of the respondents. In the face of, and on the basis of such an undertaking, we are not persuaded that the intended appeal would be rendered nugatory. As no transfer or disposition of the property can take place there is no likelihood of the substratum of the appeal being destroyed as contended by Mr. Muthoga for the applicant.
Accordingly, the second condition for the grant of a stay is not satisfied. That being so, it is unnecessary for us to consider if the intended appeal is arguable. The application fails and is dismissed with costs.
Dated and delivered at Nairobi this 9th day of August, 1996.
J.E. GICHERU
……………………….
JUDGE OF APPEAL
R.S.C. OMOLO
………………………
JUDGE OF APPEAL
A.A. LAKHA
……………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR