[2022] KEHC 3218 (KLR)
The court found that the ex parte order requiring the appellants to deposit a substantial sum as a precondition to defending the suit was made without affording them a hearing, thus violating their right to a fair trial. The absence of any response from the respondents and the risk of substantial loss to the...
Source-derived case information.
- Citation
- [2022] KEHC 3218 (KLR)
- Parties
- Appellant: Adan Yare Hassan; Appellant: Fatuma Abdulkadir Ali; Respondent: Habiba Ali Welal; Respondent: Batula Ali Walal; Respondent: Muna Ali Welal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E238 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Exparte Orders, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Adan Yare Hassan
Appellant
Fatuma Abdulkadir Ali
Appellant
Habiba Ali Welal
Respondent
Batula Ali Walal
Respondent
Muna Ali Welal
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution of the ex parte order pending appeal.
- 2 Whether the ex parte order was issued without affording the appellants a right to be heard.
- 3 Whether the appellants would suffer substantial loss if the stay is not granted.
Ratio Decidendi
The court found that the ex parte order requiring the appellants to deposit a substantial sum as a precondition to defending the suit was made without affording them a hearing, thus violating their right to a fair trial. The absence of any response from the respondents and the risk of substantial loss to the appellants justified the grant of a stay of execution pending appeal. The court held that the appellants had met the threshold for stay of execution as set out in the Civil Procedure Rules and the Constitution.
Court Disposition
Application for stay of execution allowed.
Orders
- An order for stay of execution of the ex parte order issued on 8th April 2022 by Hon. M.W. Murage, Senior Resident Magistrate, is granted pending appeal.
- Costs of the motion to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
Hassan & another v Welal & 2 others (Civil Appeal E238 of 2022) [2022] KEHC 3218 (KLR) (Civ) (15 July 2022) (Ruling)
Neutral citation: [2022] KEHC 3218 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E238 of 2022
JK Sergon, J
July 15, 2022
Between
Adan Yare Hassan
1st Appellant
Fatuma Abdulkadir Ali
2nd Appellant
and
Habiba Ali Welal
1st Respondent
Batula Ali Walal
2nd Respondent
Muna Ali Welal
3rd Respondent
Ruling
1. The subject matter of this ruling is the motion dated 14th April 2022 taken out by the appellants whereof they sought for order for stay of execution pending appeal of the order issued exparte on 8th April 2022 by Hon. M. W. Murage, learned SRM vide Nairobi CMCC No. COM. MSU. No. E0056 of 2022.
2. The motion is supported by the affidavit sworn by Adan Yare Hasan. The motion was served upon the respondent’s advocate as shown by the affidavit of service sworn by Moses Kimarong Sakana but the same attract any response therefore the application proceeded exparte.
3. I have considered the grounds stated on the face of the motion plus the facts deponed in the supporting affidavit. I have also taken into account the oral submissions of Mr. Lakicha, learned advocate for the appellant.
4. It is the submission of the applicant that the trial magistrate ordered the appellant to deposit in court a sum of kshs.4,681,825/25 as a condition to enable them defend the suit.
5. It is argued by the appellants that they would suffer substantial loss if the order for stay is not granted in that they would lose their constitutional right of a fair trial and hearing.
6. There is no averment controverting the assertion that the trial Senior Resident Magistrate issued the order complained of exparte without according the appellants a right of hearing before complying with the court order.
7. I am convinced that the appellants’ motion has merit, it is allowed. Consequently, an order for stay of execution of the exparte order issued on 8th April 2022 by Hon. M.W. Murage, learned Senior Resident Magistrate is granted pending appeal. Costs of the motion to abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:..............for the 1st Appellant..............for the 2nd Appellant.............for the 1st Respondent.............for the 2nd Respondent.............for the 3rd Respondent