[2009] KEHC 3737 (KLR)
The court clarified that its previous ruling of 29th January, 2009, did not grant an operative order for stay of execution pending appeal. The only order made was a declaration that the appellant was entitled to a stay of execution, as the memorandum of appeal was filed within time. However, since no specific prayer...
Source-derived case information.
- Citation
- [2009] KEHC 3737 (KLR)
- Parties
- Appellant: Occidental Insurance Co. Ltd; Respondent: Dhanji Vaghji & Co. Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 41 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Clarification of Previous Order
- Outcome
- Clarification granted; no stay of execution order was issued.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Review of Orders, Appeal Timeliness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Occidental Insurance Co. Ltd
Appellant
Dhanji Vaghji & Co. Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Clarification of Previous Order
Legal Issues
- 1 Whether the court granted an order for stay of execution pending appeal in its ruling of 29th January, 2009.
- 2 Whether the appellant is entitled to assume the existence of a stay of execution order based on the court's previous declaration.
Ratio Decidendi
The court clarified that its previous ruling of 29th January, 2009, did not grant an operative order for stay of execution pending appeal. The only order made was a declaration that the appellant was entitled to a stay of execution, as the memorandum of appeal was filed within time. However, since no specific prayer for a stay of execution order was made, the court could not and did not grant such an order. Therefore, the appellant cannot assume the existence of a stay of execution order based solely on the entitlement declared by the court. For the avoidance of doubt, the court expressly stated that no order for stay of execution pending appeal was issued.
Court Disposition
Clarification granted; no stay of execution order was issued.
Orders
- It is clarified that there is no order for stay of execution pending appeal issued by this court on 29th January, 2009.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 41 of 2006
OCCIDENTAL INSURANCE CO. LTD……....APPELLANT
VERSUS
DHANJI VAGHJI & CO. LIMITED………….RESPONDENT
R U L I N G
1. By a notice of motion dated 26th February, 2009, Dhanji Vaghji & Company Limited, who is the respondent to this appeal, seeks clarification of the order which was made by this court on 29th January, 2009. The respondent wants to know whether this court granted an order for stay of execution pending appeal, to the appellant, and if so, the court to set out the terms upon which the appellant is to enjoy the order of stay of execution.
2. The order of 29th January, 2009, referred to by the respondent arose from a ruling delivered by this court which culminating in the following order:
“For the above reasons, I do allow the application dated 14th May, 2008, and issue orders as prayed in prayer (4). The applicant shall have costs of this application. Those shall be the orders of this court.”
3. It is clear from the above, that the only order granted by this court was prayer No.4 of the application dated 14th May, 2008. That prayer was as follows:
“That this honourable court do review the ruling and order of the Hon. Mr. Justice Mutungi delivered on 6th March, 2008 and do return a finding that:
(a)The memorandum of appeal was filed within time.
(b)The applicant is entitled to a stay of execution herein pending appeal.”
4. In granting prayer No.4 the court only made a finding that the appellant was entitled to a stay of execution, as his memorandum of appeal was filed within time. The applicant’s prayer was actually in the nature of a declaration. The court could not therefore grant any specific order for stay of execution pending appeal, as none was specifically requested for. The appellant cannot therefore assume that there is an order for stay of execution merely because he is entitled to one.
5. For the avoidance of doubt, I hereby clarify that there is no order for stay of execution pending appeal which was issued by this court on 29th January, 2009.
Dated and delivered this 5th day of May, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Mutua for the applicant/respondent
Rimui for respondent/appellant
Erick – Court clerk