[2002] KECA 146 (KLR)
The Court found that the respondent's refusal to release the exhibits required by the applicants for the intended appeal, while simultaneously seeking to execute the decree, would prejudice the applicants' right to appeal. In the absence of any reasonable explanation for withholding the exhibits, the Court exercised...
Source-derived case information.
- Citation
- [2002] KECA 146 (KLR)
- Parties
- Applicant: Mwaniki Njoroge Kamau; Applicant: Josia Kimemia; Respondent: Lee Sheh Pong
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 160 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- Application for stay of execution granted as prayed. Respondent ordered to return all exhibits to the superior court within 30 days. Costs in the intended appeal.
- Legal Topics
- Stay of Execution, Appeals Process, Exhibit Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwaniki Njoroge Kamau
Applicant
Josia Kimemia
Applicant
Lee Sheh Pong
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 2 Whether the respondent should be compelled to return all exhibits tendered at trial to the superior court.
Ratio Decidendi
The Court found that the respondent's refusal to release the exhibits required by the applicants for the intended appeal, while simultaneously seeking to execute the decree, would prejudice the applicants' right to appeal. In the absence of any reasonable explanation for withholding the exhibits, the Court exercised its discretion to grant a stay of execution pending the hearing and determination of the intended appeal. The Court further ordered the respondent to return all exhibits tendered at trial to the superior court within 30 days, ensuring the integrity of the appellate process and the applicants' ability to pursue their appeal effectively.
Court Disposition
Application for stay of execution granted as prayed. Respondent ordered to return all exhibits to the superior court within 30 days. Costs in the intended appeal.
Orders
- Stay of execution of the decree pending hearing and determination of the intended appeal is granted.
- Respondent to return all exhibits tendered in the trial back to the superior court within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE COURT OF APPEAL AT NAIROBI
(CORAM: TUNOI, O'KUBASU & KEIWUA, JJ.A.)
CIVIL APPLICATION NO. NAI. 160 OF 2001 (UR. 85/2001)
BETWEEN
MWANIKI NJOROGE KAMAU
JOSIA KIMEMIA ............................................ APPLICANTS
AND
LEE SHEH PONG ......................................... RESPONDENT
(Application for stay of execution pending the hearing and determination of an intended Appeal to be filed from the judgment and decree of the High Court of Kenya at Nakuru (Ondeyo, J.) dated 10th May, 1997
in
H.C.C.C. NO. 455 OF 1995) *****************
RULING OF THE COURT
The respondent has the exhibits which are required by the applicants for the purposes of lodging the intended appeal and he appears unwilling for no apparent reason to release them to the applicants or to the court and yet he wants to execute the decree.
In the circumstances the application for stay of execution of the decree pending the hearing and determination of the intended appeal is granted as prayed. Further, the respondent is ordered to return all the exhibits tendered in the trial back to the superior court within 30 days hereof. The costs of this application shall be in the intended appeal.
Dated and delivered at Nairobi this 30th day of January, 2002.
P. K. TUNOI ................................... JUDGE OF APPEAL
E. O. O'KUBASU .................................. JUDGE OF APPEAL
M. Ole KEIWUA ................................... JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR