[2012] KEHC 2318 (KLR)
The court found that the applicant had not filed an appeal and only had a pending application for leave to appeal out of time. As such, there was no basis for invoking Order 42 rule 6 of the Civil Procedure Rules to seek a stay of execution. The application for stay was therefore premature and could not be...
Source-derived case information.
- Citation
- [2012] KEHC 2318 (KLR)
- Parties
- Applicant: Harrison W.M. Maguh; Respondent: Rung'eto F.C.S. Ltd
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 38 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Premature Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison W.M. Maguh
Applicant
Rung'eto F.C.S. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a temporary stay of execution pending hearing of the application for leave to appeal out of time.
- 2 Whether the application for stay is premature in the absence of a filed appeal.
Ratio Decidendi
The court found that the applicant had not filed an appeal and only had a pending application for leave to appeal out of time. As such, there was no basis for invoking Order 42 rule 6 of the Civil Procedure Rules to seek a stay of execution. The application for stay was therefore premature and could not be entertained. The court emphasized that the applicant should first pursue and obtain leave to appeal before seeking a stay of execution. Accordingly, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 8/7/2011 is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISCELLANEOUS CIVIL APPLICATION 38 OF 2011
HARRISON W.M. MAGUH............................. APPELLANT/APPLICANT
VERSUS
RUNG'ETO F.C.S. LTD ............…......….......................... RESPONDENT
R U L I N G
This is the application dated 8/7/2011 filed under Order 42 rule 6 and Order 51 rule 1 Civil Procedure Rules for Orders of temporary stay pending the hearing of High Court Civil application No.38 of 2011. The grounds are on the face of the application supported by an affidavit.
The same has been opposed by the Respondent herein. A perusal of the record herein confirms that no Appeal has been filed herein. There is a pending application for leave to file appeal out of time dated 5/5/2011. I do not therefore see any basis upon which the Applicant is invoking the provisions of Order 42 rule 6 Civil Procedure Rules. This application was filed prematurely and I will not allow it. The Applicant should make haste and have his application for leave heard at the earliest opportunity.
Application dated 8/7/2011 is dismissed with costs.
DATED AND DELIVERED AT EMBU THIS 26TH DAY OF SEPTEMBER 2012.
H.I. ONG\'UDI
J U D G E
In the presence of;
Applicant – present
Njue – C/c