[2019] KEHC 1258 (KLR)
The court held that the failure by the 1st appellant to deposit the decretal sum as ordered by Githua J did not extinguish his right of appeal. The effect of non-compliance was that the stay of execution lapsed, exposing the appellant to execution, but the substantive right to pursue the appeal remained intact....
Source-derived case information.
- Citation
- [2019] KEHC 1258 (KLR)
- Parties
- Appellant: Morris Gari; Appellant: Dan Onyango Odeyo; Appellant: Kantech Steel Fabricator; Respondent: Cyrus Mugwe Kuria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 382 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal
- Outcome
- application dismissed with costs to the 1st appellant
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Dismissal of Appeal, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Gari
Appellant
Dan Onyango Odeyo
Appellant
Kantech Steel Fabricator
Appellant
Cyrus Mugwe Kuria
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal
Legal Issues
- 1 Whether failure to comply with a conditional stay order warrants dismissal of the appeal.
- 2 Whether the right of appeal is extinguished by non-compliance with a deposit order.
Ratio Decidendi
The court held that the failure by the 1st appellant to deposit the decretal sum as ordered by Githua J did not extinguish his right of appeal. The effect of non-compliance was that the stay of execution lapsed, exposing the appellant to execution, but the substantive right to pursue the appeal remained intact. Therefore, the application seeking dismissal of the appeal on this ground could not be sustained. The application was dismissed with costs to the 1st appellant.
Court Disposition
application dismissed with costs to the 1st appellant
Orders
- The application to dismiss the appeal is dismissed.
- Costs awarded to the 1st appellant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO 382 OF 2018
MORRIS GARI............................................1ST APPELANT/RESPONDENT
DAN ONYANGO ODEYO..........................2ND APPELLANT/RESPONDET
KANTECH STEEL FABRICATOR.......3RD APPELLANT/RESPODNENT
VERSUS
CYRUS MUGWE KURIA.............................RESPONDENT/APPELLANT
RULING
This is an application seeking an order for the dismissal of the appeal lodged by 1st appellant herein. It is based on Article 50 of the Constitution, Sections 1A,1B,3A and 78 of the Civil Procedure Act, Order 42 rules 13(1),14(1),(2) and (3),35(1) and Order 51 rule 1 of the Civil Procedure Rules, the reasons set out on the face of the application, together with a supporting affidavit sworn by the respondent. The application is opposed and there is a replying affidavit sworn by the 1st respondent. Both parties have filed submissions contents of which I have considered.
The1st appellant had earlier moved the court by way of an application dated 15th August, 2018 seeking a stay of execution of the lower court judgment. Githua J delivered a ruling on 29th November, 2018 allowing the stay sought by the appellant, on condition that the decretal sum is deposited in a joint interest earning account in the names of the advocates on record within 30 days from that date. It was further ordered that, in default of the said orders, the stay issued shall automatically lapse.
There has not been compliance with that order. The 1st appellant did not challenge that order by way of review or appeal. I believe it is the default on the part of the 1st appellant that caused the respondent to file this application. The default in depositing the decretal sum as ordered by Githua J does not extinguish the 1st appellant’s right of appeal. What it means is that, the 1st appellant is exposed to execution but his right of appeal remains.
Therefore the application to have the appeal dismissed as sought in the present application cannot be sustained. The application is therefore dismissed with costs to the 1st appellant.
Dated, signed and delivered at Nairobi this 27th Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE