[2023] KEHC 1141 (KLR)
The court held that an appeal does not lie as of right from an order made under Order 42 Rule 6 of the Civil Procedure Rules concerning stay of execution. The proper recourse for an aggrieved party is to make a fresh application for stay in the appellate court, not to file an appeal against the lower court's...
Source-derived case information.
- Citation
- [2023] KEHC 1141 (KLR)
- Parties
- Appellant: Joseph Kariuki; Appellant: Michael Njoroge; Appellant: Timothy Karwe; Respondent: John Wamutegi Kogi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- appeal struck out as incompetent
- Judges
- DKN Magare
- Legal Topics
- Appeals From Interlocutory Orders, Stay of Execution, Order 42 Rule 6, Order 43 Rule 2, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kariuki
Appellant
Michael Njoroge
Appellant
Timothy Karwe
Appellant
John Wamutegi Kogi
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
Legal Issues
- 1 Whether an appeal lies from an order granting or refusing stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the present appeal is competent and sustainable in law.
Ratio Decidendi
The court held that an appeal does not lie as of right from an order made under Order 42 Rule 6 of the Civil Procedure Rules concerning stay of execution. The proper recourse for an aggrieved party is to make a fresh application for stay in the appellate court, not to file an appeal against the lower court's decision on stay. Since the present appeal was against such an order, it was found to be untenable and incompetent. Consequently, the appeal was struck out. The court further exercised its discretion not to award costs, as the respondent did not appear or defend the appeal.
Court Disposition
appeal struck out as incompetent
Orders
- The entire appeal is struck out.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
Kariuki & 2 others v Kogi (Civil Appeal 53 of 2021) [2023] KEHC 1141 (KLR) (23 January 2023) (Ruling)
Neutral citation: [2023] KEHC 1141 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal 53 of 2021
DKN Magare, J
January 23, 2023
Between
Joseph Kariuki
1st Appellant
Michael Njoroge
2nd Appellant
Timothy Karwe
3rd Appellant
and
John Wamutegi Kogi
Respondent
(Being an Appeal against the Ruling by Honourable E Nderitu (Chief Magistrate) in Molo CMCC No 398 of 2009 delivered on April 27, 2021)
Ruling
1. This matter came up for hearing today morning for Notice to Show Cause why the appeal should not be dismissed for want of prosecution.
2. I perused the file and asked the learned counsel for the appellant whether an appeal lies in law from an application for stay pending appeal from the lower court.
3. Learned counsel was convinced that an appeal can lie. I prompted him on the contents of order 42 but requested for directions.
4. This was a prompted by the dictates of order 42 rule 6 (1) which provides:- “No appeal of second Appeal shall operate as stay of execution or proceedings when a decree or orders appealed from except in so far as the Court appealed from, may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court to which such appeal is preferred shall be at liberty, on application be made to consider shall an application and to matter such order thereon as may to it seem just…”
5. Ipso facto, when aggrieved by an application for stay pending appeal, recourse is to make another application in the court appealed to. These is no basis for appealing against a decision on stay. They is even more pertinent as regards the dictates of order 43 rule 2 (w). An order made under order 42 rule 6 is not among the orders that are made as a matter of right.
6. Therefore, this appeal being an appeal from an order made pursuant to order 42(6) the same is untenable and cannot be sustained.
7. Consequently, the entire appeal is struck out. Given that the respondent did not appear nor defend this appeal, the order that commends itself in terms of section 27 of the Civil Procedure Act, is to order that there be no order as to costs.
Dated, issued and delivered at Nairobi, ex tempore, virtually this 23rd day of January, the year of our Lord Two Thousand and Twenty Three.HON MR JUSTICE DENNIS KIZITO MAGAREJUDGE OF THE HIGH COURT, NAIROBIDelivered virtually in the presence of;Miss Mwangi for the AppellantNancy Bor, Court Assistant.JUDGE23RD JANUARY, 2023