[2002] KECA 267 (KLR)
The Court of Appeal found that, without expressing any opinion on the merits of the intended appeal, the applicants had satisfied the court that the appeal would be rendered nugatory if a stay of execution was not granted. The court therefore exercised its discretion to grant the stay as prayed, pending the hearing...
Source-derived case information.
- Citation
- [2002] KECA 267 (KLR)
- Parties
- Applicant: Kiai Mbaki; Applicant: Waweru Mugo; Applicant: Thiong'o Kiunga; Respondent: Gichuhi Macharia; Respondent: Duncan Mwaura Kamau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 157 of 2002
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution granted
- Legal Topics
- Stay of Execution, Appeals, Nugatory Appeal Test
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiai Mbaki
Applicant
Waweru Mugo
Applicant
Thiong'o Kiunga
Applicant
Gichuhi Macharia
Respondent
Duncan Mwaura Kamau
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 2 Whether the intended appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court of Appeal found that, without expressing any opinion on the merits of the intended appeal, the applicants had satisfied the court that the appeal would be rendered nugatory if a stay of execution was not granted. The court therefore exercised its discretion to grant the stay as prayed, pending the hearing and determination of the intended appeal. Costs of the application were ordered to abide the outcome of the appeal.
Court Disposition
application for stay of execution granted
Orders
- A stay of execution of the judgment and decree of the High Court in H.C. Winding Up Cause No. 1 of 2000 is granted as prayed.
- Costs of the application shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
(CORAM: TUNOI, LAKHA & OWUOR, JJ.A.)
CIVIL APPLICATION NO. NAI. 157 OF 2002 (UR. 82/2002)
BETWEEN 1. KIAI MBAKI ............................................................... 1ST APPLICANT
2. WAWERU MUGO .................................................... 2ND APPLICANT
3. THIONG'O KIUNGA ................................................ 3RD APPLICANT AND GICHUHI MACHARIA .............................................. 1ST RESPONDENT
DUNCAN MWAURA KAMAU ................................ 2ND RESPONDENT
(Application for stay of execution of the Judgment and Decree of the High Court of Kenya at Milimani Commercial Courts delivered by (Hon. Rensley, Commissioner of Assize) dated 29th May, 2002
in
H.C.WINDING UP CAUSE NO. 1 OF 2000)
************************ RULING OF THE COURT
Whilst expressing no opinion whether the intended appeal is likely to succeed, we are satisfied the intended appeal will be rendered nugatory if stay is withheld. Accordingly, the application is granted as prayed. Costs shall abide the appeal.
Dated and delivered at Nairobi this 25th day of June, 2002.
P.K. TUNOI .................. JUDGE OF APPEAL
A.A. LAKHA .................. JUDGE OF APPEAL
E. OWUOR .................. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR