[2002] KECA 235 (KLR)
The Court found that the applicant failed to satisfy the two essential conditions for the grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules: (1) that the intended appeal is arguable or not frivolous, and (2) that the appeal would be rendered nugatory if the stay is not granted. The Court...
Source-derived case information.
- Citation
- [2002] KECA 235 (KLR)
- Parties
- Applicant: Muraya Wandungu; Respondent: Resident Magistrate (Nakuru); Respondent: Nyandarua District Land Disputes Tribunal
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application 336 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- E Owuor, EO O'Kubasu
- Legal Topics
- Stay of Execution, Appeals Process, Land Disputes, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muraya Wandungu
Applicant
Resident Magistrate (Nakuru)
Respondent
Nyandarua District Land Disputes Tribunal
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated that the intended appeal is arguable and not frivolous.
- 2 Whether the applicant has shown that the appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The Court found that the applicant failed to satisfy the two essential conditions for the grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules: (1) that the intended appeal is arguable or not frivolous, and (2) that the appeal would be rendered nugatory if the stay is not granted. The Court was not persuaded on either point and therefore dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: LAKHA, OWUOR & O'KUBASU, JJ.A)
CIVIL APPLICATION NO. NAI. 336 OF 2001
BETWEEN
MURAYA WANDUNGU .......................................APPLICANT
AND
RESIDENT MAGISTRATE (NAKURU) ...............1ST RESPONDENT
NYANDARUA DISTRICT LAND DISPUTES TRIBUNAL...2ND RESPONDENT
(Application for stay of execution pending an appeal from the ruling and order of the High Court of Kenya at Nakuru (Mr. Justice Rimita) dated 21st September, 2001
in
H.C. MISC. APPLICATION NO. 63 OF 2001)
*****************
RULING OF THE COURT
This is an application brought under rule 5(2) (b) of the Court of Appeal Rules in which the applicant seeks orders of injunction or stay of execution pending the hearing and determination of an intended appeal.
The principles upon which this Court acts in an application of this nature are now well settled. First, the applicant has to demonstrate that the intended appeal is likely to succeed or that it is not frivolous. Secondly, the applicant has to show that the appeal would be rendered nugatory if the orders sought are granted.
Mr. Akhaabi did not satisfy us on either of these issues.
Nor are we persuaded that the intended appeal is arguable or that it would be rendered nugatory if the orders sought are not granted.
That being so, this application fails. It is therefore dismissed with costs.
Dated and delivered at Nakuru this 19th day of September, 2002.
A. A. LAKHA
...............
JUDGE OF APPEAL
E. OWUOR
...............
JUDGE OF APPEAL
E. O. O'KUBASU
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR