[2003] KEHC 905 (KLR)
The court found that the appellant's involvement in the original suit was questionable and that the appeal was not insubstantial. The court observed that the appellant withdrew from the matter after failing to obtain the log book as instructed, and both counsels agreed on this fact. Given these circumstances, the...
Source-derived case information.
- Citation
- [2003] KEHC 905 (KLR)
- Parties
- Appellant: Luka Kimaru t/a Kimaru Kiplagat & Co. Advocates; Respondent: Ibrahim K. Rugongo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 528 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application for stay of execution granted with costs to the respondent
- Legal Topics
- Stay of Execution, Prima Facie Case, Contempt of Court, Appeal Probability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luka Kimaru t/a Kimaru Kiplagat & Co. Advocates
Appellant
Ibrahim K. Rugongo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the appellant was properly made a party to the suit subject to the appeal.
- 2 Whether there is a prima facie case with a probability of success to warrant a stay of execution.
- 3 Whether pending contempt proceedings against the appellant justify granting a stay of execution.
Ratio Decidendi
The court found that the appellant's involvement in the original suit was questionable and that the appeal was not insubstantial. The court observed that the appellant withdrew from the matter after failing to obtain the log book as instructed, and both counsels agreed on this fact. Given these circumstances, the court held that there was a prima facie appeal with a probability of success, justifying the grant of a stay of execution. Additionally, the impending contempt proceedings, which could affect the appellant's liberty, provided further grounds for granting the stay. The court therefore allowed the application for stay of execution, subject to the appellant paying costs to the...
Court Disposition
application for stay of execution granted with costs to the respondent
Orders
- Stay of execution granted pending appeal.
- Applicant to pay costs of the application to the respondent.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBIHIGH COURT CIVIL APPEAL NO. 528 OF 2002 (From the Original Civil Suit No. RMCC 1477 of 2002 of CM’s Court at Milimani) LUKA KIMARU t/a KIMARU KIPLAGAT & CO. ADOVCATES ………………. APPELLANT VERSUS IBRAHIM K. RUGONGO ……………………….. RESPONDENT RULING I do not understand how the appellant became a party to the suit subject to this appeal. If I go by what part he played in this matter as per the record.
This observation gives me the view that the appeal filed herein is not insubstantial. And if the plea in the lower court was for a log book which as the record shows was not obtained by the appellant as were the instructions of the other defendant and that this is the reason why the appellant withdrew from this matter, as acceded to by both counsel herein, then what is it that was being sought from the said appellant in the suit subject to this appeal?
Surely these two observations must lead to the fact that there is a prima facie appeal with the probability of success which would warrant that this application for stay of execution succeeds. Moreover, that contempt proceedings are in the offing against the appellant for failing to obey the lower court order which is seriously contested in this appeal – which contempt order would interfere his liberty, is a further reason to lead this court to grant this application for stay of execution.
Consequently I grant the order sought but direct the applicant to pay costs thereof to the respondent. Delivered this 6th day of February 2003.
D.K.S AGANYANYA JUDGE