[2010] KEHC 1101 (KLR)
The court found that the applicant failed to annex copies of the impugned orders and proceedings, making it impossible for the court to determine whether the appeal was arguable or whether the applicant would suffer irreparable loss if stay was not granted. The court further held that the mere possibility of the...
Source-derived case information.
- Citation
- [2010] KEHC 1101 (KLR)
- Parties
- Appellant: Narendra Solanki; Respondent: D. M. Pandya
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 97 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Proceedings, Appeal Thresholds, Irreparable Loss, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Narendra Solanki
Appellant
D. M. Pandya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the applicant has met the threshold for grant of stay of proceedings pending appeal.
- 2 Whether the absence of the impugned orders and proceedings precludes the court from determining the merits of the application.
- 3 Whether the risk of defending two suits constitutes substantial or irreparable loss.
Ratio Decidendi
The court found that the applicant failed to annex copies of the impugned orders and proceedings, making it impossible for the court to determine whether the appeal was arguable or whether the applicant would suffer irreparable loss if stay was not granted. The court further held that the mere possibility of the applicant having to defend two suits did not, in itself, constitute substantial or irreparable loss. Consequently, the applicant did not meet the threshold for the grant of stay of proceedings pending appeal, and the court declined to exercise its discretion in his favour.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 97 OF 2010
NARENDRA SOLANKI …………………………………… APPELLANT
VERSUS
D. M. PANDYA………………………………………….RESPONDENT
RULING
The application dated8th June 2010is for the basic order that there be a stay of proceedings and orders of the Resident Magistrate in Winam SRMCC Number 646 of 2005 pending the hearing and determination of the applicant’s appeal to the High Court at Kisumu from the orders made onthe 17th May 2010and7th June 2010.
The grounds for the application are that the intended appeal is arguable and that unless an order of stay is granted the applicant shall suffer irreparable loss thereby rendering the appeal nugatory.
An affidavit in support of the application is deponed by the applicant himself. Apart from the memorandum of appeal dated3rd June 2010, the affidavit does not contain copies of the ruling and the orders made onthe 17th May 2010and7th June 2010which are the subject of the appeal neither is there any copy of the proceedings leading to the disputed orders. The court would not therefore be in a position to determine whether or not the appeal is arguable and whether or not if stay is not granted the likelihood of the applicant suffering irreparable loss is high.
In any event, even if the appeal is merited the fact that the applicant may be left in a position which requires that he defends two suits against him is not by itself sufficient to occasion substantial or irreparable loss.
The absence of the orders appealed against as well as the proceedings in Winam SRMCC number 646 of 2005 and High Court Civil case number 90 of 2003 renders it impossible for this court to see the link between the two cases (if any).
In the end result there are no reasons good enough for this court to exercise discretion in favour of the applicant.
The threshold for the grant of stay pending appeal has not been fulfilled.
The application must and is hereby dismissed with costs.
Delivered, dated and Signed at Kisumu this 27th day of September 2010
J. R. KARANJA
J U D G E
JRK/aao