[2001] KECA 243 (KLR)
The Court of Appeal found that the applicant had demonstrated that the intended appeal was arguable, particularly on the issue of whether the superior court was entitled to back-date maintenance payments. The court further held that if a stay was not granted, the appeal would be rendered nugatory, as execution of...
Source-derived case information.
- Citation
- [2001] KECA 243 (KLR)
- Parties
- Applicant: H.W.K; Respondent: E.C
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 374 of 2000
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- RO Kwach
- Legal Topics
- Maintenance Orders, Stay of Execution, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H.W.K
Applicant
E.C
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 stay of execution under rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether the intended appeal is arguable and not frivolous.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court of Appeal found that the applicant had demonstrated that the intended appeal was arguable, particularly on the issue of whether the superior court was entitled to back-date maintenance payments. The court further held that if a stay was not granted, the appeal would be rendered nugatory, as execution of the maintenance orders could not be reversed if the appeal succeeded. Accordingly, the court exercised its discretion to grant a stay of execution of the superior court's ruling, subject to the applicant paying a reduced monthly maintenance amount pending the determination of the appeal.
Court Disposition
Application for stay of execution granted.
Orders
- There shall be a stay of execution of the ruling of the superior court given on 28th November, 2000 until the final determination of the intended appeal or further order of the court.
- The applicant shall pay maintenance to the petitioner and her three children of K.Shs.15,000 per month from the date of this order.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: KWACH, OMOLO & LAKHA, JJ.A.) CIVIL APPLICATION NO. NAI. 374 OF 2000 (UR. 182/2000)
BETWEEN
H.W.K …......................................... APPLICANT
AND
E.C............................................. RESPONDENT
(An application for stay of execution in an intended appeal from a Ruling of the High Court of Kenya at Nairobi (K.H. Rawal, J.) dated 28th November, 2000
in
DIVORCE CAUSE NO. 17 OF 1998) ******************
RULING OF THE COURT
This is an application by the unsuccessful husband for a stay of execution of the decision of the superior court (Mrs. Rawal, J.)given on 28 November, 2000 whereby she made certain orders requiring the applicant to maintain the petitioner (wife) and her three children by paying her a sum of K.Shs.30,000/= from the year 1999 and to pay the school fees and medical charges for the children.
The principles upon which this Court grants a stay under rule 5(2)(b)of the Rules of this Court (under which this application has been made) are now firmly established. It has to be shown to this court that the intended appeal is arguable and that if the stay is withheld, the appeal will be rendered nugatory.
Having carefully considered the submissions made to this court on behalf of the parties, we are satisfied that the intended appeal is not frivolous but is certainly arguable. As we have already stated, the judge of the superior court ordered the applicant to make back-dated payments to the wife. It is at least arguable that the judge was not entitled to back-date the payments. We are also satisfied that the intended appeal will be rendered nugatory if a stay is not granted as sought.
In these circumstances, the application for stay succeeds. We order that there shall be a stay of execution of the ruling of the superior court given on 28th November, 2000 until the final determination of the intended appeal or until such further order as this court may deem fit save that the applicant shall pay maintenance to the petitioner and her three children of K.Shs.15,000/= per month from the date of this order. The costs of this application shall abide the intended appeal.
Dated and delivered at Nairobi this 16th day of March, 2001.
R.O. KWACH ..................
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