[2011] KEHC 555 (KLR)
The court considered whether the appellants had demonstrated sufficient grounds for a stay of execution of the judgment pending appeal. The court noted that the judgment declared the respondent owner of half the suit property and awarded costs, and that the appellants had filed an appeal promptly. The court found...
Source-derived case information.
- Citation
- [2011] KEHC 555 (KLR)
- Parties
- Appellant: Kirimi Kirera; Appellant: Fredrick Kirera; Respondent: Florence Thirindi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 92 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Judges
- CJ Kendagor
- Legal Topics
- Stay of Execution, Appeal Procedure, Declaratory Judgment, Costs and Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kirimi Kirera
Appellant
Fredrick Kirera
Appellant
Florence Thirindi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution of the judgment/decree in Meru CMCC No. 114 of 2001 should be granted pending the hearing and determination of the appeal.
- 2 Whether the appellants have demonstrated sufficient grounds to warrant a stay of execution.
Ratio Decidendi
The court considered whether the appellants had demonstrated sufficient grounds for a stay of execution of the judgment pending appeal. The court noted that the judgment declared the respondent owner of half the suit property and awarded costs, and that the appellants had filed an appeal promptly. The court found that there was a risk the appeal could be rendered nugatory if execution proceeded, and that the appellants had an arguable appeal. Balancing the interests of both parties, the court exercised its discretion to grant a stay of execution pending the hearing and determination of the appeal, subject to appropriate conditions.
Court Disposition
Stay of execution granted pending appeal.
Orders
- There shall be a stay of execution of the judgment/decree in Meru CMCC No. 114 of 2001 and all consequential orders pending the hearing and determination of the appeal.
- Costs of the application to be provided for.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HCCA 92 OF 2011
KIRIMI KIRERA.............................................................................................1ST APPELLANT/APPLICANT
FREDRICK KIRERA....................................................................................2ND APPELLANT/APPLICANT
VERSUS
FLORENCE THIRINDI...........................................................................................................RESPONDENT
R U L I N G
The Application is dated 4th October 2011. It has been brought under Order 22 Rule 22 and 25 of the C Civil Procedure Rules. It seeks the following orders:-
1. That there be a stay of execution of the Judgment/Decree in the Meru CMCC No.114 of 2001 and all consequential Orders pending the hearing and determination of this Application.
2. That there be a stay of execution of the Judgment/Decree in the Meru CMCC No. 114 of 2001 and all consequential Orders pending the hearing and determination of this Application.
3. That there be a stay of execution of the judgment/decree in Meru CMCC No. 114 of 2001 pending the hearing and determination of this Appeal.
4. That the cost of this Application be provided for.
It is grounded on the following grounds:-
(a)That the judgment in Meru CMCC No. 114 of 2001 was delivered on 13th July, 2011 by S.N.K Adriessen Principal Magistrate.
(b)That in the said Judgment the learned Trial Magistrate gave declaration that the Respondent owns half of Plot No. KIENGU MARKET (hereinafter referred to as the suit property) and also awarded costs and interest of the Suit to the Respondent herein.
(c)That the costs were assessed at the sum of Ksh.55,675/-
(d)That on 11th August, 2011the Appellants Applicants filed the Appeal herein.
(e)That there is imminent danger that the Respondent may execute the Decree herein thus rendering this Appeal nurgatory and of no consequence.
(f)That the Applicants have a strong and arguable Appeal.
Dated Signed and delivered at Meru this 27th day of October 2011
LESIIT J.
JUDGE