[2024] KEHC 8494 (KLR)
The court found that since no decree had been issued in the appeal, it was not possible for the appellate court to grant a stay of execution. The application was therefore fundamentally defective and incompetent. The court emphasized that its jurisdiction to grant a stay of execution is contingent upon the existence...
Source-derived case information.
- Citation
- [2024] KEHC 8494 (KLR)
- Parties
- Appellant: Moses Ongonga Sudhe t/a Mongasud General Enterprises; Respondent: Jared Ochieng Ochieng t/a Glassmart & General Hardware
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E135 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay of Execution
- Outcome
- Application struck out as incompetent.
- Judges
- MS Shariff
- Legal Topics
- Stay of Execution, Appellate Jurisdiction, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Ongonga Sudhe t/a Mongasud General Enterprises
Appellant
Jared Ochieng Ochieng t/a Glassmart & General Hardware
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay of Execution
Legal Issues
- 1 Whether the High Court can grant a stay of execution where no decree has been issued in the appeal.
- 2 Whether the application for stay of execution is competent before the appellate court.
Ratio Decidendi
The court found that since no decree had been issued in the appeal, it was not possible for the appellate court to grant a stay of execution. The application was therefore fundamentally defective and incompetent. The court emphasized that its jurisdiction to grant a stay of execution is contingent upon the existence of a decree or order capable of being stayed. As no such decree existed in the appellate proceedings, the application was struck out as bad in law, incurably and fatally defective.
Court Disposition
Application struck out as incompetent.
Orders
- The application dated 12th July 2024 is struck out.
- The appellant to file record of appeal and submissions within 10 days from the date hereof.
Full Case Text
Judgment text and source record
19 paragraphs
Moses Ongonga Sudhe t/a Mongasud General Enterprises v Jared Ochieng Ochieng t/a Glassmart & General Hardware (Civil Appeal E135 of 2024) [2024] KEHC 8494 (KLR) (16 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8494 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E135 of 2024
MS Shariff, J
July 16, 2024
Between
Moses Ongonga Sudhe t/a Mongasud General Enterprises
Appellant
and
Jared Ochieng Ochieng t/a Glassmart & General Hardware
Respondent
Ruling
1. Upon perusal of the Appellant’s notice of motion dated 12th July 2024, the certificate of urgency issued by MacOgot Yvette advocate on even date and the supporting affidavit sworn on the same date by Moses Ongonga sudhe I do note that the Appellant seeks orders of stay of execution and/or further execution of the decree herein yet this court has not made any decree in this appeal and it is inconceivable that this court while exercising its appellate jurisdiction can issue a decree.
2. Premised on the reasons aforestated I do find that the application herein is bad in law ab ignition, incurably and fatally defective wherefore I hereby strike it out.
3. The Appellant is directed to file his record of appeal simultaneously with his submissions within 10 days from the date hereof and the Respondent to file his submissions within 20 days from the date hereof.
4. Mention on 8. 8.2024 to confirm compliance.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 16THDAY OF JULY, 2024. M. S. SHARIFFJUDGE__