[1998] KECA 148 (KLR)
The Court of Appeal dismissed the application for stay of execution because it did not have the notes or ruling of the High Court judge, making it impossible to determine whether the intended appeal was arguable or not frivolous. Without this essential information, the court could not exercise its discretion in...
Source-derived case information.
- Citation
- [1998] KECA 148 (KLR)
- Parties
- Applicant: Mastermind Tobacco Limited; Applicant: Dionsio Kamunde; Respondent: Lilian Mwendwa (suing through her mother Dorothy Kairuthi)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 60 of 1998
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JE Gicheru, AB Shah
- Legal Topics
- Stay of Execution, Appeals Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mastermind Tobacco Limited
Applicant
Dionsio Kamunde
Applicant
Lilian Mwendwa (suing through her mother Dorothy Kairuthi)
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the Court of Appeal should grant a stay of execution pending an intended appeal where the lower courts have refused such stay.
- 2 Whether the intended appeal is arguable or not frivolous in the absence of the High Court's notes or ruling.
Ratio Decidendi
The Court of Appeal dismissed the application for stay of execution because it did not have the notes or ruling of the High Court judge, making it impossible to determine whether the intended appeal was arguable or not frivolous. Without this essential information, the court could not exercise its discretion in favour of the applicants. The absence of the record meant the applicants failed to discharge the burden required for the grant of a stay of execution pending appeal.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, TUNOI & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI 60 OF 1998
BETWEEN
1. MASTERMIND TOBACCO LIMITED
2. DIONSIOKAMUNDE....................................APPLICANTS
AND
LILIAN MWENDWA (Suing through her mother
DOROTHYKAIRUTHI.......................................RESPONDENT
(An intended appeal from the ruling of the High Court of Kenya at Meru (Hon. Mr. Justice Etyang given on the 12th day of March, 1998 in
H.C. MISC. APPLICATION NO. 12 OF 1998)
**************
RULING OF THE COURT
We have before us an application for stay of execution of a decree of the Resident Magistrate's Court at Meru. The said Court declined to grant stay of execution pending appeal to the superior Court. The superior court in a miscellaneous application for stay of execution, pending appeal to that court declined to order any stay of execution. The intended appeal is against such refusal by the superior court.
We have no notes of the learned judge before us. Nor do we have a copy of his ruling. In this state of affairs we are unable to say if the intended appeal is an arguable one or that it is not frivolous. In these circumstances we have no alternative but to dismiss this application, which we hereby do, with costs to the respondent.
Dated and delivered at Nairobi this 31st day of March, 1998.
J. E. GICHERU
................
JUDGE OF APPEAL
P. K. TUNOI
................
JUDGE OF APPEAL
A. B. SHAH
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR