[2008] KEHC 1177 (KLR)
The court found that the application for stay of execution was brought more than two years after the delivery of judgment, and that the applicants had not appealed within the statutory period nor demonstrated an intention to appeal. The court was not persuaded that the intended review had a probability of success....
Source-derived case information.
- Citation
- [2008] KEHC 1177 (KLR)
- Parties
- Plaintiff: John Bosco Ngeta Maundu; Defendant: William Wambua Kiwia; Defendant: Charles Mutuku; Defendant: Baumanns Limited; Defendant: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1165 of 2003
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Review
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Review of Judgment, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Bosco Ngeta Maundu
Plaintiff
William Wambua Kiwia
Defendant
Charles Mutuku
Defendant
Baumanns Limited
Defendant
The Honourable Attorney General
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Review
Legal Issues
- 1 Whether the defendants are entitled to a stay of execution of the judgment and decree pending review.
- 2 Whether the application for stay was brought without undue delay.
- 3 Whether the intended review has a probability of success.
Ratio Decidendi
The court found that the application for stay of execution was brought more than two years after the delivery of judgment, and that the applicants had not appealed within the statutory period nor demonstrated an intention to appeal. The court was not persuaded that the intended review had a probability of success. Applying the settled principles for grant of stay, including the requirement for promptness and the likelihood of success, the court held that the applicants had not satisfied the necessary conditions. Consequently, the court exercised its discretion to dismiss the application for stay of execution.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the plaintiff/respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1165 of 2003
JOHN BOSCO NGETA MAUNDU…………...……………PLAINTIFF/RESPONDENT
VERSUS
WILLIAM WAMBUA KIWIA……………………………1ST DEFENDANT/APPLICANT
CHARLES MUTUKU………………….………………...2ND DEFENDANT/APPLICANT
(Both T/A RONA ENTERPRISES)
BAUMANNS LIMTED…….……….…………………….3RD DEFENDANT/APPLICANT
THE HONOURABLE ATTORNEY GENERAL.………4TH DEFENDANT/APPLICANT
R U L I N G
By this Notice of Motion the Defendant seeks orders of stay of execution of the judgment and decree of this court dated 10th March 2003 pending review.
In support of the application Charles Mutuku has sworn an affidavit giving grounds.
The facts which gave rise to this application briefly may be stated. The plaintiff filed this suit against the defendants. The suit was heard and both the Plaintiff and the Defendants called witnesses to testify. Judgment was entered against the 1st 2nd and 3rd Defendants on 10th March 2003. This application for stay was filed on 28th September 2005 which was over 2 years after judgment was delivered.
The applicant did not appeal against the judgment but intends to apply for review of the judgment. The principles on which the court grants a stay of execution are well settled. Two conditions have to be satisfied by the applicant: first, it must be shown that the intended appeal is arguable and secondly, it must be shown that if stay is withheld, the appeal will be rendered nugatory and of course the application must be brought without delay.
The judgment in this case was delivered on 10th March 2003 and this application is brought over 2 years later. The applicant never appealed within the statutory period and he does not intend to appeal against the judgment.
I have accordingly considered the facts of this case and applying the principles above, I have not been persuaded that the intended appeal has a probability of success. That being so, the application for stay fails. I do not see how, in the circumstances it would be proper to exercise my discretion to grant this application.
This application for stay therefore, fails and is dismissed with costs.
Dated and delivered at Nairobi this 17th day of October 2008.
J. L. A. OSIEMO
JUDGE