[2018] KEHC 6201 (KLR)
The court found that the applicant, although not a party before the Tribunal, had demonstrated an arguable appeal and that the Tribunal's order for liquidation could have drastic and adverse consequences if executed before the appeal is heard. The court emphasized the importance of not denying a party a hearing...
Source-derived case information.
- Citation
- [2018] KEHC 6201 (KLR)
- Parties
- Appellant: Kagaa Farmers Co-operative Society; Respondent: Daniel Karanja Gatuha; Respondent: Joe Karanja Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 327 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals Process, Cooperative Societies, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kagaa Farmers Co-operative Society
Appellant
Daniel Karanja Gatuha
Respondent
Joe Karanja Njoroge
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the Tribunal's order pending appeal.
- 2 Whether the applicant, not being a party before the Tribunal, has an arguable appeal that justifies the stay.
- 3 Whether liquidation of the applicant society without a hearing would cause irreparable harm.
Ratio Decidendi
The court found that the applicant, although not a party before the Tribunal, had demonstrated an arguable appeal and that the Tribunal's order for liquidation could have drastic and adverse consequences if executed before the appeal is heard. The court emphasized the importance of not denying a party a hearing where its interests are directly affected. Accordingly, the court exercised its discretion to grant a stay of execution of the Tribunal's order pending the hearing and determination of the appeal, to preserve the subject matter and prevent injustice.
Court Disposition
Stay of execution granted pending appeal.
Orders
- There shall be a stay of execution of the order of the Tribunal directing liquidation of the applicant until the appeal is heard and finalised.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 327 OF 2017
KAGAA FARMERS
CO-OPERATIVE SOCIETY.............APPELLANT/APPLICANT
VERSUS
DANIEL KARANJA GATUHA.....................1ST RESPONDENT
JOE KARANJA NJOROGE.........................2ND RESPONDENT
RULING
The applicant is a cooperative society which was aggrieved by the decision of the Cooperative Tribunal made on 14th March, 2014. The decision of the Tribunal followed a dispute between the claimant and respondent before that Tribunal.
It is the applicant’s case that that decision has adverse consequences to it in the event there is no stay of execution. Consequently, on 5th July, 2017 the applicant filed this application by way of Notice of Motion under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A and 3A of the Civil Procedure Act for a stay of execution of the Tribunal’s directions made on 14th March, 2014 aforesaid.
The reasons are set out on the face of the application and there is a supporting affidavit sworn by one Joseph Muiruri Njoroge who is a member of the applicant. The application is opposed and there is a replying affidavit sworn by the respondent Daniel Githiora Gatuha. Parties have filed submissions herein which I have noted.
The applicant had moved before the Tribunal seeking to be joined as an interested party. However, that move was denied by the Tribunal. There then followed a Judicial Review application No. 68 of 2015 which was also dismissed on 4th December, 2015.
I have perused the averments by the parties as contained in the affidavits filed by the parties. I have also related the proceedings to the Memorandum of Appeal which is on record. Some of the issues raised may have a direct impact on the appeal which is yet to be heard. It may be true that the objectives of the applicant have collapsed but an order of liquidation a society without a hearing may have drastic and adverse consequences, and especially so if the society has not been heard.
The applicant was not a party before the Tribunal but my assessment of the grounds raised in the Memorandum of Appeal is that, there is an arguable appeal and therefore the applicant should not be left out, especially where the decision may affect it directly. In the circumstances, I am persuaded that there should be a stay of execution of the order of the Tribunal directing liquation of the applicant. This order shall remain in place until the appeal is heard and finalised.
The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 31st day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE