[2004] KEHC 728 (KLR)
The court found that although the supporting affidavit was sworn by counsel, the source of information was disclosed as evidence on record, which is acceptable practice. The respondent did not rebut the assertion that he is a man of strain and may not be able to refund the decretal sum if the appeal succeeds. Given...
Source-derived case information.
- Citation
- [2004] KEHC 728 (KLR)
- Parties
- Appellant: James Achei Nyabando; Respondent: T. O. (Minor sued through next of Kin & father George Morara Ombogo)
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 262 of 2004
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Legal Topics
- Stay of Execution, Appeals Process, Affidavit Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Achei Nyabando
Appellant
T. O. (Minor sued through next of Kin & father George Morara Ombogo)
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal.
- 2 Whether an advocate can depone to contentious matters in an affidavit supporting an application for stay.
- 3 Whether the respondent's financial status justifies the stay of execution.
Ratio Decidendi
The court found that although the supporting affidavit was sworn by counsel, the source of information was disclosed as evidence on record, which is acceptable practice. The respondent did not rebut the assertion that he is a man of strain and may not be able to refund the decretal sum if the appeal succeeds. Given the substantial amount involved (Kshs. 400,000) and the fact that an appeal had already been filed, the court held that it was fair and just to grant a stay of execution pending the determination of the appeal, provided the decretal sum is deposited in a joint interest-earning account by both parties' counsel within 30 days.
Court Disposition
Application for stay of execution allowed.
Orders
- Stay of execution of the decree granted until the appeal is heard and determined.
- Applicant to deposit the whole decretal sum in an interest accruing account in the joint names of counsel for the two parties within 30 days.
Full Case Text
Judgment text and source record
8 paragraphs
IN THE HIGH COURT OF KENYA AT KISII Civil Appeal 262 of 2004
JAMES ACHEI NYABANDO …………………………………………. APPELLANT VERSUS T. O. (Minor sued through next of Kin & father GEORGE MORARA OMBOGO………. RESPONDENT.
RULING
The appellant seeks for stay of execution of the decree in Kisii CM. CC.NO.190 of 2003 pending the hearing and determination of the appeal. It was submitted that the appeal has high chances of success. Further it had deponed that the respondent is a man of strain and if the decretal sum is paid to him he cannot be able to refund if the appeal is successful.
Application was opposed mainly on the ground that the supporting affidavit in sworn by counsel and that he has sworn on contentious matter – that the respondent is a man of strain. Indeed the proper practice and the law is that an advocate cannot depone on facts which are contentious. However reading para.6 of the affidavit the counsel clearly states that his source of information is evidence on record. I have not seen the proceedings in the lower court but disclosure of source of information is important where an advocate is swearing to facts.
The Respondent has not attempted to rebut the fact raised that he is a man of strain. Shs.400,000/= is not small money. Appeal has already been filed and I feel that is only fair and just that there be a stay until its outcome. I therefore allow the application and order that there be a stay of execution of the decree until appeal is heard and determined. The applicant to deposit the whole of decretal sum in an interest accruing account in the joint names of counsel for the two parties within 30 days. Costs in the appeal. Dated on 9th November 2004. KABURU BAUNI JUDGE 9/11/04
Mr. Agonya for Applicant. N/A. for the Respondent.
KABURU BAUNI JUDGE