[2003] KEHC 806 (KLR)
The court determined that, given the unique circumstances of the case involving a dispute over the management of a children's institution and the lack of clarity regarding the parties' true interests, strict adherence to the procedural requirements for stay of execution could result in greater injustice. The court...
Source-derived case information.
- Citation
- [2003] KEHC 806 (KLR)
- Parties
- Respondent: John Wagacha Thuo; Appellant: Joseph Muya; Appellant: Samuel Kimotho
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 106 of 2003
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted; status quo ante to be maintained pending appeal.
- Legal Topics
- Stay of Execution, Status Quo Orders, Appeal Prerequisites, Children Institution Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wagacha Thuo
Respondent
Joseph Muya
Appellant
Samuel Kimotho
Appellant
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether strict adherence to Order XLI Rule 4(2) should be applied in the unique circumstances of this case.
- 3 Whether the interests of the institution (Golden Bridge Children Home) require protection pending appeal.
Ratio Decidendi
The court determined that, given the unique circumstances of the case involving a dispute over the management of a children's institution and the lack of clarity regarding the parties' true interests, strict adherence to the procedural requirements for stay of execution could result in greater injustice. The court found that the intended appeal was not frivolous and that the best course was to preserve the status quo ante, thereby protecting the interests of the institution pending the hearing and determination of the appeal. The court thus ordered that the parties maintain the status quo as it existed before the dispute arose, pending the outcome of the appeal.
Court Disposition
Application for stay of execution granted; status quo ante to be maintained pending appeal.
Orders
- The parties shall maintain the status quo ante obtaining before the matters leading to the suit in the Lower Court arose pending the hearing and determination of this appeal.
- Costs shall abide the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 106 OF 2003
JOHN WAGACHA THUO ……………………………….…RESPONDENT
VERSUS
JOSEPH MUYA ………………………………….………...1ST APPELLANT
SAMUEL KIMOTHO ………………………………….….2ND APPELLANT
RULING
This is an application under Order XL1 Rule 4 (1), (2) and (6) of the Civil Procedure Rules. In it, the Appellants seek, in the main, stay of execution of the Ruling in NAKURU CMCC No. 1387 OF 2003 dated and delivered on June 30, 2003 pending the hearing and determination of this appeal.
It is evident from the material before me that this is a dispute between the founders and or sponsors of Golden Bridge Children Home. The parties before me have taken different positions and it is not in doubt that they were in the same conflict before the Lower Court when that Court gave the Ruling which is the subject of the Appeal. I have not had the benefit to look at the record of the Lower Court and the decision of that Court to understand why the learned Magistrate came to the decision he did yet Counsel proceeded before me as if it was the Appeal itself which was under consideration. Although I agree with what was said by the Late Justice Pall in Indar Singh Gill Ltd. v. Njoroge Gichara HCCC 2411 of 1990, this Court is warned not to decide an appeal at this stage without benefit of the record of the Lower Court. What is required to be shown is that the intended appeal is not frivolous.
There are other principles set out under Order XLI Rule 4 (2) of the Rules in dealing with applications of this nature but this a very unique case in which adherence to strict legal principles may result in greater injustice than the justice sought to be achieved by the process. The parties before me may not themselves come to feel the pain of this litigation. It is the institution in issue which, unfortunately, is not before me. I do not know (and I cannot tell from the material before me) who to believe between the opposing parties before me. I do not know their real interests in the institution in dispute and I do not want to speculate. It is the institution which is in real need of this Court’s protection. I am burdened but I have to decide this case one way or the other. I am of the view that the best order in the circumstances is as follows: The parties shall maintain the status quo ante obtaining before the matters leading to the suit in the Lower Court arose pending the hearing and determination of this appeal.
That is the order of this Court. Costs shall abide the appeal.
Dated and Delivered at Nakuru this 30th day of July, 2003.
ALNASHIR VISRAM
JUDGE