[2002] KECA 227 (KLR)
The Court found that the applicant failed to demonstrate any arguable appeal, as there was no material before the Court to support such a finding. The notice of appeal had not been served on the purchaser and was not in due form, both of which are fatal procedural defects. Furthermore, the application was brought...
Source-derived case information.
- Citation
- [2002] KECA 227 (KLR)
- Parties
- Applicant: James Herberts Odhiambo; Respondent: Far East Chinese Medical Centre
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 409 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- E Owuor
- Legal Topics
- Stay of Execution, Appeals Process, Delay in Filing, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Herberts Odhiambo
Applicant
Far East Chinese Medical Centre
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal to warrant a stay of execution.
- 2 Whether the notice of appeal was properly served and in due form.
- 3 Whether the delay in bringing the application was explained and justified.
Ratio Decidendi
The Court found that the applicant failed to demonstrate any arguable appeal, as there was no material before the Court to support such a finding. The notice of appeal had not been served on the purchaser and was not in due form, both of which are fatal procedural defects. Furthermore, the application was brought after an inordinate and unexplained delay, and the applicant's conduct did not merit the exercise of the Court's discretion in his favour. Consequently, the application for stay of execution 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
20 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: TUNOI, LAKHA & OWUOR, JJ.A.) CIVIL APPLICATION NO. NAI. 409 OF 2001 (UR. 219/2001)
BETWEEN
JAMES HERBERTS ODHIAMBO ........................................ APPLICANT
AND
FAR EAST CHINESE MEDICAL CENTRE ........................ RESPONDENT
(Application for stay of execution of the ruling and order of the High Court of Kenya at Nairobi (Justice Githinji) delivered at Nairobi on 22nd November, 2001 in H.C.C.C. NO. 1706 OF 1996) *****************
RULING OF THE COURT
This is an application under rule 5(2)(b) of the Rules of this Court seeking a stay of execution of a decree passed in 1996. It is now well settled that an intended appeal must be arguable. There is no material before us to persuade us that any arguable appeal can be shown. The notice of appeal has admittedly not been served on the purchaser. Nor is the notice in due form. There has been an inordinate delay which has not been explained. His hands are not clean. In all the circumstances, we see no merit in this application. Accordingly, it is dismissed with costs.
Made at Nairobi this 6th day of February, 2002.
P.K. TUNOI
.......................................
JUDGE OF APPEAL
A.A. LAKHA
....................................
JUDGE OF APPEAL
E. OWUOR
.....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR