[2014] KEHC 4692 (KLR)
The court found that the applicant had demonstrated merit in the application for stay of execution, particularly as the respondent's objection was not properly before the court due to lack of notice of appointment and non-appearance at the hearing. The court exercised its discretion to grant a stay of execution...
Source-derived case information.
- Citation
- [2014] KEHC 4692 (KLR)
- Parties
- Appellant: Harrison Mwangeka Mwanjala Msirinyi; Respondent: Registered Trustees Full Gospel Churches of Kenya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Judges
- JV Juma
- Legal Topics
- Stay of Execution, Appeal Procedure, Interim Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison Mwangeka Mwanjala Msirinyi
Appellant
Registered Trustees Full Gospel Churches of Kenya
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the respondent's objection was properly before the court.
Ratio Decidendi
The court found that the applicant had demonstrated merit in the application for stay of execution, particularly as the respondent's objection was not properly before the court due to lack of notice of appointment and non-appearance at the hearing. The court exercised its discretion to grant a stay of execution pending the hearing and determination of the appeal, ensuring that the appeal would not be rendered nugatory by premature execution of the judgment. Costs were ordered to be in the cause.
Court Disposition
Stay of execution granted pending appeal.
Orders
- A stay of execution of the judgment delivered on 6th September, 2013 in Voi PMCC No. 110 of 2012 is granted pending the hearing and determination of the appeal.
- Costs in the cause.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 38 OF 2013
HARRISON MWANGEKA
MWANJALA MSIRINYI……………………….......................……….…….APPELLANTS
VERSUS
REGISTERED TRUSTEES FULL GOSPEL CHURCHES OF KENYA…….RESPONDENT
RULING
Before court is the notice of motion dated 4th March, 2014 by which the applicant seeks inter alia the following orders:
“This Honourable Court be pleased to stay the execution of Judgment delivered herein on 6th September, 2013 in Voi PMCC No. 110 of 2012: Full Gospel Churches of Kenya Registered Trustees vs. Harrison Wachenje Mwadime and Another pending the hearing of this application interpartes.
This Honourable Court be pleased to stay the execution of the judgment delivered herein on 6th September, 2013 in Voi until the appellant’s appeal is heard and determined.”
The High Court in Mombasa did on 6th March, 2014 grant interim order. The matter was listed for interpartes hearing on 24th March, 2014. A notice of objection was filed by the respondent on 24th March, 2014. However, counsel for the respondent Kertiony & Company Advocates who filed this notice of objection were not properly on record having failed to file any notice of appointment in the matter. In any event the said objection was neither canvassed nor argued since counsel for the respondent failed to appear on the date for hearing despite having had proper notice of such date. I have considered the notice of motion as well as the annexed supporting affidavit sworn by the applicant on 4th March, 2014. I am satisfied that the application has merit. I do hereby grant a stay of execution in terms of prayer (3) of the application. Costs in the cause.
Dated and delivered in Mombasa this 9th day of June, 2014.
M. ODERO
JUDGE
In the presence of:
No appearance by either party