[2004] KEHC 1038 (KLR)
The court found that the applicant had filed an appeal in the Court of Appeal and that, at this stage, it could not determine whether the appeal was frivolous. The court accepted the applicant's argument that execution of the taxed costs would render the appeal nugatory. Therefore, the court exercised its discretion...
Source-derived case information.
- Citation
- [2004] KEHC 1038 (KLR)
- Parties
- Appellant: James Obande Owuor; Respondent: Elkana Oroko Mwangi; Respondent: Okkech Oduor; Respondent: Patricia Obuya; Respondent: Isaiah Juma
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 163 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition of deposit of taxed costs within 15 days.
- Legal Topics
- Stay of Execution, Costs Taxation, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Obande Owuor
Appellant
Elkana Oroko Mwangi
Respondent
Okkech Oduor
Respondent
Patricia Obuya
Respondent
Isaiah Juma
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution of taxed costs should be granted pending the hearing and determination of the appeal.
- 2 Whether the appellant's appeal would be rendered nugatory if execution proceeds before the appeal is heard.
Ratio Decidendi
The court found that the applicant had filed an appeal in the Court of Appeal and that, at this stage, it could not determine whether the appeal was frivolous. The court accepted the applicant's argument that execution of the taxed costs would render the appeal nugatory. Therefore, the court exercised its discretion to grant a stay of execution of the taxed costs pending the hearing and determination of the appeal, on condition that the applicant deposits the taxed costs in court within 15 days. Failure to deposit the amount would result in the dismissal of the application for stay.
Court Disposition
Application for stay of execution allowed on condition of deposit of taxed costs within 15 days.
Orders
- There be a stay of execution until the appeal is heard on condition that the applicant deposits the taxed costs in court within 15 days from the date of the ruling.
- If the money is not deposited, the application for stay will stand dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO.163 OF 2001
JAMES OBANDE OWUOR ………………………………………….. APPELLANT VERSUS
1. ELKANA OROKO MWANGI )
2. OKKECH ODUOR )
3. PATRICIA OBUYA ) ……………………………......................................... RESPONDENTS
4. ISAIAH JUMA )
RULING
Applicant’s application in Prayer 4 is for a stay of execution against all costs taxed herein pending the hearing and determination of the appellants pending appeal.
The appellants appeal in this court was dismissed with costs. Costs were taxed at shs.69, 025/- on 22nd September 2003. The appellant has now appealed in the Court of Appeal and pray for stay of execution until the appeal is heard.
Application was opposed. I have considered the submissions and the affidavits and grounds of opposition. The applicant has submitted that he has filed an appeal in the Court of Appeal. This court cannot at this stage determine whether the appeal is frivolous or not. If execution takes place his appeal will be rendered nugatory.
The application is therefore allowed. There be a stay of execution until the appeal is heard on condition that he deposit the taxed costs in court within 15 days from today’s date. If the money is not deposited application will stand dismissed.
KABURU BAUNI JUDGE 4/6/04. Signed, dated and delivered on 4th June 2004 in presence of Mrs. Asati for Respondent.
N/A for Applicant. KABURU BAUNI JUDGE
4/6/04