[2025] KEHC 9828 (KLR)
The court held that it could not grant a stay of execution where the decree or order sought to be stayed had not been exhibited. The existence of such a decree or order is fundamental to the court's jurisdiction to entertain an application for stay. Without the impugned order or decree, the court would be acting in...
Source-derived case information.
- Citation
- [2025] KEHC 9828 (KLR)
- Parties
- Appellant: Catherine Adhiambo Obare; Appellant: Newton Rolf Odongo; Respondent: Cosmas Oduor Opondo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E023 of 2025
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- WM Musyoka
- Legal Topics
- Stay of Execution, Jurisdiction, Discretionary Powers, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Adhiambo Obare
Appellant
Newton Rolf Odongo
Appellant
Cosmas Oduor Opondo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court can grant a stay of execution where the decree or order sought to be stayed has not been exhibited.
- 2 Whether the court has jurisdiction to grant a stay in the absence of the impugned order or decree.
- 3 Whether the applicant has demonstrated grounds for the exercise of the court's discretion to grant a stay of execution.
Ratio Decidendi
The court held that it could not grant a stay of execution where the decree or order sought to be stayed had not been exhibited. The existence of such a decree or order is fundamental to the court's jurisdiction to entertain an application for stay. Without the impugned order or decree, the court would be acting in vain and without jurisdiction. Furthermore, the court found that the applicant had not provided the ruling or judgment giving rise to the impugned decree or order, making it impossible for the court to assess whether the discretion to grant a stay should be exercised. Consequently, the application was found to be devoid of merit and was dismissed.
Court Disposition
application dismissed
Orders
- The Motion dated 4th April 2025 is dismissed.
- The interim stay order granted on 28th April 2025 is discharged.
Full Case Text
Judgment text and source record
24 paragraphs
Obare & another v Opondo (Civil Appeal E023 of 2025) [2025] KEHC 9828 (KLR) (4 July 2025) (Ruling)
Neutral citation: [2025] KEHC 9828 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E023 of 2025
WM Musyoka, J
July 4, 2025
Between
Catherine Adhiambo Obare
1st Appellant
Newton Rolf Odongo
2nd Appellant
and
Cosmas Oduor Opondo
Respondent
(Appeal from orders made in ruling by Hon. Kassim Akida, Resident Magistrate/Adjudicator, in Busia SCCC No. 272 of 2024, on 3rd April 2025)
Ruling
1. The Motion, dated 4th April 2025, seeks stay of execution of a decree passed in Malaba SCC COM No. E272 of 2025.
2. A copy of the decree or order that I am being invited to stay has not been exhibited. I do not know whether that decree or order exists. I run the risk of staying a non-existent order. I should not act in vain.
3. Attaching the decree or order sought to be stayed is critical. It goes to jurisdiction. The jurisdiction to stay the decree or order stems from the order itself. Where that order or decree does not exist, there would be no jurisdiction to exercise discretion to stay a non-existent order or decree. To unlock exercise of the jurisdiction and discretion, it must be established that there exists a decree or order capable of being executed and appealed against.
4. Secondly, grant of a stay order is discretionary. The stay is of an order or decree made in exercise of some discretion. To enable the court, consider a stay application, it ought to be demonstrated that the other court exercised discretion improperly. That can only be demonstrated where the ruling or judgement, giving rise to the impugned decree or order, is exhibited; to bring out how the trial court handled the exercise of discretion. I have no ruling or judgement before m. I have no basis of evaluating whether discretion should be exercised to grant stay, and, if it should, to guide me on how to exercise it.
5. I am being invited to leap into the dark. I decline that invitation.
6. The Motion, dated 4th April 2025, is devoid of merit. It is for dismissal, and I hereby dismiss it. The interim stay order, granted on 28th April 2025, is hereby discharged. Orders accordingly.
DELIVERED, DATED AND SIGNED, IN OPEN COURT, AT BUSIA, ON THIS 4TH DAY OF JULY 2025. WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Ipapu, instructed by Ipapu P. Jackah & Company, Advocates for the Appellants.