[2011] KEHC 1035 (KLR)
The court found that since the lower court only dismissed the plaintiff's suit and made no other orders, there was nothing in existence to be stayed from execution. Once a suit is dismissed, it ends there, and no stay can be granted in respect of a non-existent order. The court further noted that it had not been...
Source-derived case information.
- Citation
- [2011] KEHC 1035 (KLR)
- Parties
- Appellant: Jafred Makhakha Wafula; Respondent: Wilberforce Wafula Barasa; Respondent: Seth B. Masidza; Respondent: Fransisco K. Kisuya; Respondent: Rodgers Khakina Mayende; Respondent: Jackline M. Barasa; Respondent: Catherine N. Masibo; Respondent: Nzoia Sugar Co. Ltd
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 146 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- FN Muchemi
- Legal Topics
- Stay of Execution, Appeals Process, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jafred Makhakha Wafula
Appellant
Wilberforce Wafula Barasa
Respondent
Seth B. Masidza
Respondent
Fransisco K. Kisuya
Respondent
Rodgers Khakina Mayende
Respondent
Jackline M. Barasa
Respondent
Catherine N. Masibo
Respondent
Nzoia Sugar Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted where the only order made was dismissal of the suit.
- 2 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that since the lower court only dismissed the plaintiff's suit and made no other orders, there was nothing in existence to be stayed from execution. Once a suit is dismissed, it ends there, and no stay can be granted in respect of a non-existent order. The court further noted that it had not been asked to grant an injunction to restrain the 7th defendant from paying the sugarcane proceeds to the respondents. The application for stay therefore lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO.146 OF 2009
(Appeal arising from original BGM CM. CC No.263 of 2009)
JAFRED MAKHAKHA WAFULA….................................… APPELLANT/APPLICANT
~VRS~
WILBERFORCE WAFULA BARASA…..................................… 1ST RESPONDENT
SETH B. MASIDZA….............................… 2ND RESPONDENT
FRANSISCO K. KISUYA…....................................… 3RD RESPONDENT
RODGERS KHAKINA MAYENDE…....................................… 4TH RESPONDENT
JACKLINE M. BARASA….......................................… 5TH RESPONDENT
CATHERINE N. MASIBO.........................................…… 6TH RESPONDENT
NZOIA SUGAR CO. LTD..........................................…… 7TH RESPONDENT
RULING
The Applicant/Appellant in his application dated 11/02/2010 seeks for order for stay of execution of orders granted on 19/11/2009 in Bungoma CM CC No.263 of 2009 and all consequential orders. The application was heard by way of affidavits.
The Appellant herein sued the Respondents in CM CC No.263 of 2009 for an order restraining the Respondent from getting the sugarcane proceeds of the 7th Respondents. The case was dismissed with costs. The Appellant was dissatisfied with the judgment and appealed to this court.
The grounds supporting the application are that the appeal is arguable with overwhelming chances of success. Further that the Appellant having been aggrieved by the said judgment, has a right to be heard on appeal. The appeal may be rendered nugatory if the orders sought are not granted.
The application was opposed by the Respondent who depones that the suit was dismissed for lack of proof.
I have looked at the grounds relied on and the nature of the application. The magistrate’s court only made an order to dismiss the Plaintiff’s suit. There are no other orders which are in existence to be stayed from being executed. Once a suit is dismissed it ends there and there is nothing to be stayed in a subsequent application. This court has not been asked to grant an injunction to restrain the 7th Defendant from paying the sugarcane proceeds to the Respondents. I have also perused the proceedings of the lower court. The appeal may be arguable but I have my reservations on its so called overwhelming chances of success.
I find that this application lacks merit and I dismiss it with costs.
……………………………
F. N. MUCHEMI
JUDGE
Ruling dated and delivered on the 14th day of November 2011 in the presence of Advocates.
…………………………..
JUDGE