[2006] KEHC 117 (KLR)
The court found that the application for stay of execution had no merit because the order sought to be stayed was itself a dismissal of a previous application for stay, making it unclear what practical effect a stay would have. The court reasoned that the applicants had already been given ample opportunity to...
Source-derived case information.
- Citation
- [2006] KEHC 117 (KLR)
- Parties
- Appellant: Neliah Magoma Nyakundi; Appellant: George Nyang’au Nyakundi; Respondent: Beninah Barongo Nyakundi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 125 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Appeal Procedure, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Neliah Magoma Nyakundi
Appellant
George Nyang’au Nyakundi
Appellant
Beninah Barongo Nyakundi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of its ruling/order dismissing the applicant's previous application for stay pending appeal.
- 2 Whether the applicants will suffer prejudice if the hearing of the main suit proceeds before the intended appeal is determined.
Ratio Decidendi
The court found that the application for stay of execution had no merit because the order sought to be stayed was itself a dismissal of a previous application for stay, making it unclear what practical effect a stay would have. The court reasoned that the applicants had already been given ample opportunity to prepare for the hearing of the main suit, including time to amend their defence, and that no prejudice would be suffered if the hearing proceeded. The court also noted that the reasons for dismissing the earlier application for stay remained valid and were not altered by the applicants' intention to appeal. The court concluded that there was no good reason to halt the proceedings and...
Court Disposition
application dismissed
Orders
- The application for stay of execution is disallowed.
- No orders as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
ATKISII
Civil Appeal 125 of 2006
NELIAH MAGOMA NYAKUNDI )
GEORGE NYANG’AU NYAKUNDI ) …………...…. APPELLANTS
VERSUS
BENINAH BARONGO NYAKUNDI ……..….....…… RESPONDENT
RULING
The applicant/appellant’s application seeks court to order stay of execution of its ruling and/or order given on 21st October 2006 pending the hearing and determination of the intended appeal in the Court of Appeal.
The respondent did not file any grounds of opposition or replying affidavit.
The appellant/applicants had been sued by the respondent in Kisii CMCC.NO. 69 of 2006. The respondent thereafter filed an application seeking court to stay the proceedings in the lower court until this appeal was heard and determined. The court heard the application and in its ruling of 2nd October 2006 dismissed the application. The applicant has now brought this application seeking the court to order a stay of execution of that order of dismissal as they intend to appeal against that ruling in the Court of Appeal.
As stated the application was not opposed. Nonetheless I have carefully considered the same and find it has no merit. The Order/ruling the applicants want stayed is the one dismissing their application for stay.
It is not clear therefore what the applicant really want or what effect would be there if I were to grant this application. Would it mean the order of dismissal has no effect and as such the application by the applicant dated 29th May 2006 would be unresolved? Of course what the applicant want is the court to stay the hearing of the main suit. Mr. Momanyi informs court that the hearing is set for tomorrow. That was the same prayer in the application dated 29th May 2006. In dismissing that application the court gave its reasons as to why it felt the application had no merit.
That reasoning still stands and have not been changed by the fact that the applicant intends to appeal against that ruling. The applicants are indeed entitled to ventilate their case before the highest court but this court still feels that the reasons it gave in dismissing the application were valid and as such there is no good reason to order that the proceedings be stopped.
I cannot be able to say that the intended appeal has high chances of success and thus the need for a stay. Perhaps the applicant need to put that before The Court of Appeal for determination. On the other hand I don’t think the applicant will suffer any prejudice if the hearing of the main suit proceeds.
They were given a chance to amend their defence. That was on 16th May 2006 which is a period of over 5 months ago. Their application for stay was dismissed on 2nd October 2006 which is almost a month ago.
I believe they had ample time to take any necessary steps and prepare for the hearing. If later it is found that the ruling was erroneous proper orders will be made notwithstanding how far the hearing had progressed.
From the above reasons therefore I disallow the application, with no orders to costs.
Dated 30th October 2006.
KABURU BAUNI
JUDGE
Delivered in Presence of
c.c. Mobisa
Mr. Momanyi for Respondent.
N/A for Respondent.
Mr. Momanyi: I apply for certified copy of the ruling.
KABURU BUANI
JUDGE
Court: Certified copies be given to counsel on payment of requisite fees.
KABURU BAUNI
JUDGE