[2001] KECA 120 (KLR)
The Court found that the circumstances had not changed since its previous order granting a partial stay of execution, and there was no basis to depart from that decision. The Court therefore allowed the application and granted a stay of execution of the High Court's order to the extent that the applicant would pay...
Source-derived case information.
- Citation
- [2001] KECA 120 (KLR)
- Parties
- Applicant: James Mbugua Macharia; Respondent: Agnes Wanjiku Mbugua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 39 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application allowed; stay of execution granted on terms.
- Judges
- D Ole Keiwua
- Legal Topics
- Judicial Separation, Stay of Execution, Maintenance Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mbugua Macharia
Applicant
Agnes Wanjiku Mbugua
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the High Court judgment pending appeal.
- 2 Whether the circumstances have changed since the previous stay order was granted.
Ratio Decidendi
The Court found that the circumstances had not changed since its previous order granting a partial stay of execution, and there was no basis to depart from that decision. The Court therefore allowed the application and granted a stay of execution of the High Court's order to the extent that the applicant would pay KES 10,000 per month to the respondent, with the balance of KES 25,000 per month stayed pending the hearing and determination of the intended appeal. The stay was conditional upon the applicant updating the payments within 30 days, failing which the stay would lapse automatically.
Court Disposition
Application allowed; stay of execution granted on terms.
Orders
- Stay of execution of the High Court's order for payment of KES 35,000 per month is granted to the extent that the applicant shall pay KES 10,000 per month to the respondent pending appeal.
- The applicant must update the payments ordered within 30 days; in default, the stay shall lapse without further order.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: TUNOI, BOSIRE & KEIWUA, JJ.A.) CIVIL APPLICATION NO. NAI. 39 OF 2001 (21/2001 UR)
BETWEEN
JAMES MBUGUA MACHARIA ................................. APPLICANT
AND
AGNES WANJIKU MBUGUA ...............................RESPONDENT
(Application for stay of execution pending the hearing and determination of an appeal from the judgment of the High Court of Kenya at Nairobi (An'gawa, J.) delivered on 13th October, 1999
in
H.C.JUDICIAL SEPARATION CAUSE NO. 50 OF 1997) *******************************
RULING OF THE COURT
This is an application brought under rule 5(2)(b) of the Rules of this Court seeking a stay of execution on the judgment and decree of the High Court dated 13th October, 1999, in H.C.C.C. No. 50 of 1997 pending the hearing and determination of Civil Appeal No. Nai. 323 of 2000. This Court in Civil Application No. 19 of 2000 while considering a similar application between the same parties s
"Considering all the matters put before us in support of and in opposition to this application it is hereby allowed and the order that commends itself to us is that of the sum of Shs.35,000/= ordered payable to the wife there be stay of execution thereof to the extent of Shs.25,000/= per month so that the husband will pay to the wife Shs.10,000/= per mont h with effect from 13th October, 1999, pending the hearing and determination of the intended appeal.".
This was on 3rd May, 2000. The above order lapsed when Civil Appeal No. 15 of 2000 was struck out as incompetent. But since then, the circumstances have not changed. Consequently, notwithstanding the submissions made before us by counsel on both sides we find no basis for departing from the conclusions reached in the aforesaid decision.
In the result, we allow the application and grant orders in terms of the aforesaid orders made by this Court on 3rd May, 2000. However, the applicant must as a condition of the grant of the orders update the payments ordered therein with 30 days hereof and in default the stay shall lapse without any further order. Costs of this application shall be in the intended appeal.
Dated and delivered at Nairobi this 5th day of April, 2001.
P. K. TUNOI
.............................
JUDGE OF APPEAL
S. E. O. BOSIRE
…………...............
JUDGE OF APPEAL
M. KEIWUA
..................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR