[2011] KECA 167 (KLR)
The Court of Appeal held that the order of the High Court was a negative order, which did not require any action or inaction by the parties and thus could not be stayed. Furthermore, since the applicant's appeal to the High Court was filed out of time and without leave, there was no competent appeal before the...
Source-derived case information.
- Citation
- [2011] KECA 167 (KLR)
- Parties
- Applicant: Irene Njoka; Respondent: Peter Njeru Nyaga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 165 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Negative Orders, Appeal Procedure, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Njoka
Applicant
Peter Njeru Nyaga
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted against a negative order of the High Court.
- 2 Whether the absence of a competent appeal precludes the grant of stay pending appeal.
Ratio Decidendi
The Court of Appeal held that the order of the High Court was a negative order, which did not require any action or inaction by the parties and thus could not be stayed. Furthermore, since the applicant's appeal to the High Court was filed out of time and without leave, there was no competent appeal before the superior court. As a result, any stay granted by the Court of Appeal would be baseless and without legal foundation. The Court emphasized that granting a stay in such circumstances would amount to reversing the High Court's order without a hearing on the merits, which is impermissible. The application for stay was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(CORAM: TUNOI, O’KUBASU & NYAMU, JJ.A)
CIVIL APPLICATION NO. NAI. 165 OF 2010
BETWEEN
IRENE NJOKA............................................................................APPLICANT
AND
PETER NJERU NYAGA ........................................................RESPONDENT
(An appeal from the judgment of the High Court of Kenya at Embu (Karanja, J.) dated 13th May, 2010
in
H.C.C.A. NO. 77 OF 2009)
************************
RULING OF THE COURT
This is an application under rule 5 (2) (b) of this Court’s rules.
It seeks stay against execution of the order of the superior court delivered on 13th May, 2010 in Embu pending appeal.
The application was triggered off by a judgment given by SPMCC No. 233 of 2004 where the Resident Magistrate awarded damages to the respondent on 20th November, 2008 after concluding a negligence suit involving the parties to this application. The applicant herein being the aggrieved party filed an appeal against the said judgment in the superior court without leave.
When the application came up for hearing Mr. H.K. Mahan held brief for Mr. M. Njage for the applicant whereas Mr. Muyondi appeared for the respondent.
Although we have taken into account the affidavits filed both in support and against the application including the submissions of the counsel for the respective parties it was right at the outset pointed out to counsel during the hearing that the order against which a stay was sought was a negative order, a situation which in our view has been adjudicated upon in based on many past decisions of this Court. For this reason it is only this point which will be the focus of the ruling.
In her ruling (W. Karanja, J.) stated: -
“The only inference I am able to make in that “appeal” herein was filed out of time and without leave of the court. There is therefore no competent appeal before this court. That being the case, orders of stay pending the hearing and determination of the appeal cannot lie. In the circumstances, I make a finding that the application dated 17/8/2009 is totally devoid of merit and the same is hereby dismissed with costs to the decree holder/Respondent.”
The above is clearly a negative order and any stay would result in our reversing the order given by the superior court without hearing the matter on merit. We think that since there was no competent appeal in the superior court any order of stay would hang in the air in this Court. Our invocation of the overriding objective in the circumstances leads to the same conclusion namely dismissal.
In the circumstances what commends itself is a dismissal order.
The application is accordingly dismissed with costs to the respondents.
Dated and delivered at Nyeri this 8th day of July, 2011.
P.K. TUNOI
.............................
JUDGE OF APPEAL
E.O. O’KUBASU
............................
JUDGE OF APPEAL
J.G. NYAMU
............................
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR