[2009] KEHC 1374 (KLR)
The court found that the application for stay of proceedings was fundamentally flawed because the annexed orders from the lower court were neither signed nor certified as true copies of the original. Without such crucial documents, the application lacked any legal foundation. The court further noted that reliance on...
Source-derived case information.
- Citation
- [2009] KEHC 1374 (KLR)
- Parties
- Appellant: GIMCO LIMITED; Appellant: G. MBURU t/a HAKI TRADERS; Respondent: CHARLES OKELLO
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 123 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Proceedings, Appeals Process, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
GIMCO LIMITED
Appellant
G. MBURU t/a HAKI TRADERS
Appellant
CHARLES OKELLO
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the application for stay of proceedings is competent in the absence of signed or certified copies of the lower court orders.
- 2 Whether the applicant has established a proper foundation for the grant of stay pending appeal.
Ratio Decidendi
The court found that the application for stay of proceedings was fundamentally flawed because the annexed orders from the lower court were neither signed nor certified as true copies of the original. Without such crucial documents, the application lacked any legal foundation. The court further noted that reliance on a non-existent rule (Order XLII rule 21) was misplaced, as Order XLII only contains three rules. Consequently, the absence of proper documentation and reliance on incorrect procedural provisions rendered the application incompetent and necessitated its dismissal.
Court Disposition
application dismissed
Orders
- The application for stay of proceedings is dismissed.
- Costs to be borne by the applicant, payable to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
GIMCO LIMITED ………….…………………….….….. 1ST APPELLANT
G. MBURU t/a HAKI TRADERS ……………………. 2ND APPELLANT
VS.
CHARLES OKELLO …………………………..………. RESPONDENT
RULING
There is an application on record seeking a stay of all the proceedings in CMCC No.12007 of 2005 pending determination of the appeal lodged against the ruling of the lower court delivered on 16th December, 2005.
It is the applicant’s case that the defendant having been aggrieved by the said ruling he applied for leave to file an appeal which was granted. The orders cited by the learned advocate for the applicant are Order XLI Rule 4(1) and Order XLII rule 21 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
I have looked at the relevant orders and have not been able to find any order XLII rule 21 cited by the learned counsel. Order XLII of the Civil Procedure Rules has only three (3) rules and I am unable therefore to see what rule the learned counsel wanted to rely on in respect of that order. That notwithstanding, the annextures to the said application which are indeed part of the orders of the lower court have not been signed and any order that has not been signed or indicated to be a true copy of the original cannot be relied upon in an application of this nature.
It is my finding that in the absence of such crucial documents, this application has no foundation and therefore must be dismissed. It is so ordered. The costs shall be borne by the applicant payable to the respondent.
Orders accordingly.
Dated, signed and delivered at Nairobi this 21st day of October, 2009.
A. MBOGHOLI MSAGHA
JUDGE