[2024] KEHC 2925 (KLR)
The court found that the motion for stay of execution and proceedings did not specify any objective or link the stay to the pending appeal, nor did the supporting affidavit mention a stay pending appeal. However, since a memorandum of appeal had been filed, the court exercised its discretion to grant a conditional...
Source-derived case information.
- Citation
- [2024] KEHC 2925 (KLR)
- Parties
- Appellant: Richard Eyani Nganga; Respondent: Fidelis Opeto alias Kofi
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E009 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Motion for Stay of Execution and Proceedings Pending Appeal
- Outcome
- Conditional stay of execution and proceedings granted; appeal admitted and directions given for expedited hearing.
- Judges
- WM Musyoka
- Legal Topics
- Stay of Execution, Stay of Proceedings, Appeal Admission, Decretal Sum Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Eyani Nganga
Appellant
Fidelis Opeto alias Kofi
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion for Stay of Execution and Proceedings Pending Appeal
Legal Issues
- 1 Whether a stay of execution and stay of proceedings can be granted when the motion does not specify the objective or link to an appeal.
- 2 Whether the filing of a memorandum of appeal justifies granting a stay order.
- 3 What conditions should be imposed if a stay is granted in the interests of substantive justice.
Ratio Decidendi
The court found that the motion for stay of execution and proceedings did not specify any objective or link the stay to the pending appeal, nor did the supporting affidavit mention a stay pending appeal. However, since a memorandum of appeal had been filed, the court exercised its discretion to grant a conditional stay in the interests of substantive justice. The stay was granted on the condition that the appellant deposits the total decretal sum in court within 14 days, failing which the stay would lapse. The court also ordered expedited hearing of the appeal due to the strict timelines applicable in the trial court and gave directions for the filing of the record of appeal and submissions.
Court Disposition
Conditional stay of execution and proceedings granted; appeal admitted and directions given for expedited hearing.
Orders
- Stay of execution and proceedings granted on condition that the appellant deposits the total decretal sum in court within 14 days.
- In default of deposit, the stay orders shall lapse.
Full Case Text
Judgment text and source record
20 paragraphs
Nganga v Opeto alias Kofi (Civil Appeal E009 of 2024) [2024] KEHC 2925 (KLR) (22 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2925 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E009 of 2024
WM Musyoka, J
March 22, 2024
Between
Richard Eyani Nganga
Appellant
and
Fidelis Opeto alias Kofi
Respondent
(An appeal arising from the ruling of orders of Hon. A. Ogange, Adjudicator, delivered on 6th March 2024, in Malaba SCC COMM E010 of 2024)
Ruling
1. The Motion, dated 7th March 2024, is for stay of execution and stay of proceedings. It is not indicated what the applicant seeks to do upon the stay being granted, that is whether to pursue an appeal or to make some application, or whatever objective. A stay order cannot be granted for the sake of it. It must be for meeting some objective. See Order 22 rule 22 and Order 42 rule 6 of the Civil Procedure Rules.
2. I note that a memorandum of appeal was filed herein, dated 6th March 2024. However, the Motion, dated 7th March 2024, does not appear to have anything to do with the appeal. The stay sought, of execution and proceedings, appears to have nothing to do with the appeal. The stay is not sought pending appeal, or pending the doing of anything. Indeed, there is no mention of the word “appeal” in the Motion. I have perused, very closely, the supporting affidavit, it makes no mention of stay pending appeal.
3. I am not persuaded that the orders sought in the Motion of 7th March 2024 are for granting, for the reasons given. However, for the purpose of serving substantive justice, I shall grant the stay sought, as an appeal has been filed, on condition that the appellant shall deposit the total decretal sum, in this court, within 14 days, in default of which the stay orders herein shall lapse.
4. Given the procedural regime under which the suit at the trial court was filed, which provides for very strict timelines, the hearing of the appeal herein shall be expedited. The Deputy Registrar shall call for the trial court records forthwith. The appeal herein is hereby admitted. The appellant shall file a record of appeal, together with his written submissions, within 14 days. The respondent shall have 14 days to file his rejoinder. I shall allocate a date for compliance, at the delivery of this ruling. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 22ND DAY OF MARCH 2024WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Wasilwa, instructed by Wasilwa Makhakara & Company, Advocates for the Appellant.Mr. Ouma, instructed by BM Ouma & Company, Advocates for the Respondent.