[2013] KEHC 2259 (KLR)
The court found that the applicant failed to demonstrate any irreparable harm or substantial loss that would result from complying with the orders of 17-7-2013, specifically the payment of dues to the respondent. The applicant did not show that the respondent would be unable to refund the sums if the appeal...
Source-derived case information.
- Citation
- [2013] KEHC 2259 (KLR)
- Parties
- Applicant: Rev. Isaac Murwon; Respondent: Rev. Simon Alovi
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 99 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal
- Outcome
- application partly allowed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Leave to Appeal, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Isaac Murwon
Applicant
Rev. Simon Alovi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the court's orders issued on 17-7-2013 pending appeal.
- 2 Whether the applicant should be granted leave to appeal against the orders of 17-7-2013.
Ratio Decidendi
The court found that the applicant failed to demonstrate any irreparable harm or substantial loss that would result from complying with the orders of 17-7-2013, specifically the payment of dues to the respondent. The applicant did not show that the respondent would be unable to refund the sums if the appeal succeeded. The court also found the applicant's claim of lack of notice to be untrue, as counsel was present on the material day. While the court granted leave to appeal, it declined to grant a stay of execution, holding that the threshold for stay had not been met. The costs of the application were awarded to the respondent.
Court Disposition
application partly allowed
Orders
- Leave to appeal is granted to the applicant.
- Stay of execution is denied.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. 99 OF 2013
REV. ISAAC MURWON...................................................................APPLICANT
VERSUS
REV. SIMON ALOVI......................................................................RESPONDENT
R U L I N G
1).By an application dated 25-7-2013 the applicant/respondent prays for staying of this court's orders issued on 17-7-2013 and it further prays for leave to appeal. The same is supported by an affidavit of Rev. Dr. Wycliffe Kedogo Ganira sworn on the same date.
2). The respondent on the other hand has opposed the same vide a preliminary objection dated 8-8-2013.
This court dismissed the applicant's application dated 3-5-2013 in which he had sought to review and stay the orders of this court dated 29-4-2013.
3). When parties appeared before me the counsel for the respondent easily conceded on the applicant's prayer for leave to appeal, but on the other limb the same was strenuously opposed.
4). The gist of the applicant's application is that should the orders of 17-7-2013 not be allowed then the applicant stands to suffer irreparable harm and loss and that the intended appeal shall be rendered nugatory.
5). I have perused the application and heard the counsel for the applicant. Being seized with the history of this matter I do not see the damage which the applicant stands to suffer by paying the dues due to its employee. They have not demonstrated that the respondent shall be incapable of paying back whatever he would have received from the applicant.
6). The applicant's affidavit equally contains an allegation that when the ruling was delivered he had not received any notice. This is not true as there was a counsel on record on the material day.
7). At this juncture this court cannot determine whether the intended appeal is plausible. That is the province of the court of appeal. For now I do make the following orders:-
Leave is granted to the appellant to appeal.
Stay of execution is hereby denied.
Costs of this application to the respondent.
Orders accordingly.
Dated, delivered and signed at Kisumu this 9th day of September, 2013.
H.K. CHEMITEI
JUDGE HKC/va