[2004] KEHC 204 (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 permissible. The respondent did not rebut the assertion that he is a man of strain, and the decretal sum of KES 400,000 is substantial. The court held that it is fair...
Source-derived case information.
- Citation
- [2004] KEHC 204 (KLR)
- Parties
- Appellant: J.A.N; Respondent: T O (Minor sued through next of Kin & father G.M.O)
- 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.
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Affidavit Evidence, Appeal Process
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.A.N
Appellant
T O (Minor sued through next of Kin & father G.M.O)
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.
- 3 Whether the respondent's financial status justifies a 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 permissible. The respondent did not rebut the assertion that he is a man of strain, and the decretal sum of KES 400,000 is substantial. The court held that it is fair and just to grant a stay of execution pending the outcome of the appeal, provided the appellant deposits the entire decretal sum in an interest-earning joint account held by both parties' counsel within 30 days.
Court Disposition
Application for stay of execution allowed.
Orders
- There shall be a stay of execution of the decree until the appeal is heard and determined.
- The applicant shall deposit the whole decretal sum in an interest accruing account in the joint names of counsel for both parties within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII CIVIL APPEAL 262 OF 2004
J.A.N ………………….......................................………………………. APPELLANT
VERSUS
T O(Minor sued through next of Kin & fatherG.M.O ……. 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