[2024] KEHC 9241 (KLR)
The court found that the appellants failed to demonstrate the existence of an arguable appeal, especially since both the trial court and the High Court had ruled against them. The appellants had ample time to pursue a second appeal but did not do so diligently. Consequently, there was no justification to continue...
Source-derived case information.
- Citation
- [2024] KEHC 9241 (KLR)
- Parties
- Appellant: Paul Mwaniki Nthiga; Appellant: Strategic Mobile Limited; Respondent: Jane Lemparasoroi (Suing on Behalf of the Estate of Joseph Lemparasoroi Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 498 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Applications for Release of Decretal Sum and Stay Pending Appeal
- Outcome
- Application for stay dismissed; application for release of decretal sum allowed.
- Judges
- AN Ongeri
- Legal Topics
- Stay of Execution, Release of Decretal Sum, Security for Appeal, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwaniki Nthiga
Appellant
Strategic Mobile Limited
Appellant
Jane Lemparasoroi (Suing on Behalf of the Estate of Joseph Lemparasoroi Deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Applications for Release of Decretal Sum and Stay Pending Appeal
Legal Issues
- 1 Whether the decretal sum should be released to the decree holder or held as security pending appeal.
- 2 Whether the appellants have demonstrated an arguable appeal to warrant stay of execution.
Ratio Decidendi
The court found that the appellants failed to demonstrate the existence of an arguable appeal, especially since both the trial court and the High Court had ruled against them. The appellants had ample time to pursue a second appeal but did not do so diligently. Consequently, there was no justification to continue withholding the decretal sum from the respondent. The application for stay pending appeal was dismissed for lack of merit, and the application for release of the decretal sum was allowed, enabling the respondent to access the awarded amount together with accrued interest.
Court Disposition
Application for stay dismissed; application for release of decretal sum allowed.
Orders
- The application dated 1/12/2023 for stay of execution is dismissed with costs to the respondent.
- The application dated 24/10/2024 for release of the decretal sum is allowed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
Nthiga & another v Lemparasoroi (Suing on Behalf of the Estate of Joseph Lemparasoroi Deceased) (Civil Appeal 498 of 2016) [2024] KEHC 9241 (KLR) (Civ) (1 August 2024) (Ruling)
Neutral citation: [2024] KEHC 9241 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal 498 of 2016
AN Ongeri, J
August 1, 2024
Between
Paul Mwaniki Nthiga
1st Appellant
Strategic Mobile Limited
2nd Appellant
and
Jane Lemparasoroi (Suing on Behalf of the Estate of Joseph Lemparasoroi Deceased)
Respondent
Ruling
1. There are two applications coming for consideration in this ruling dated 24/10/2024 and 1/12/2023 respectively.
2. The one dated 24/10/2024 is seeking release of the decretal sum of ksh3,828,853 held at NIC Bank account in the name of “The Registrar High Court” together with all accrued interest to the decree holder through his advocate Ms Katwa & Kemboi Advocates A/No 013xxxxxxxxxxBranch: Sheikh KarumeBank: Access BankSwift code: ABNGKENA
3. The application dated 1/12/2023 is seeking for orders that the said decretal sum be held as security pending an appeal to the Court of Appeal.
4. The said sum was awarded in Milimani CMCC No. 7665 of 2009 in a judgment which was delivered on 30/6/2016.
5. Thereafter the appellant appealed to this court and the appeal was dismissed on 16/12/2022.
6. The appellant has not demonstrated that they have an arguable appeal considering that the finding of the trial court was upheld by the High Court.
7. I find the appellant has had more than sufficient time to pursue the 2nd appeal to the Court of Appeal.
8. The application dated 1/12/2023 lacks in merit and the same is dismissed with costs to the respondent.
9. The application dated 24/10/2024 be and is hereby allowed as prayed with costs.
10. The decretal sum of ksh3,828,853 held at NIC Bank account in the name of “The Registrar High Court” together with all accrued interest to the decree holder through his advocate Ms Katwa & Kemboi Advocates A/No 013xxxxxxxxxxBranch: Sheikh KarumeBank: Access BankSwift code: ABNGKENA
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF AUGUST, 2024. ………………………A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent