[2024] KEHC 13622 (KLR)
The High Court held that it lacked jurisdiction to grant a stay of execution of the lower court's decree after the appeal had been determined and costs on appeal settled. The court emphasized that execution and any application for stay of execution must be addressed to the court that issued the decree, in this case...
Source-derived case information.
- Citation
- [2024] KEHC 13622 (KLR)
- Parties
- Appellant: Lilian Otieno; Respondent: Kilimani Hospital
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E092 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed; file closed
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Appellate Jurisdiction, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Otieno
Appellant
Kilimani Hospital
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the High Court can grant a stay of execution of a decree issued by the lower court after the appeal has been determined.
- 2 Whether the application for stay of execution should have been made before the lower court where the decree remains unsettled.
Ratio Decidendi
The High Court held that it lacked jurisdiction to grant a stay of execution of the lower court's decree after the appeal had been determined and costs on appeal settled. The court emphasized that execution and any application for stay of execution must be addressed to the court that issued the decree, in this case the lower court. Since the execution process had already commenced and there was no pending appeal, the High Court could not intervene. The appellant was advised to seek relief from the lower court, including the possibility of settling the decree in instalments, as that discretion lay with the trial court. Consequently, the application for stay of execution was dismissed and...
Court Disposition
application dismissed; file closed
Orders
- The application dated 25th October 2024 for stay of execution of decree of the lower court in Kisumu CMCC No. E517 of 2021 is declined and dismissed with no orders as to costs.
- This file is closed.
Full Case Text
Judgment text and source record
23 paragraphs
Otieno v Kilimani Hospital (Civil Appeal E092 of 2022) [2024] KEHC 13622 (KLR) (7 November 2024) (Ruling)
Neutral citation: [2024] KEHC 13622 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E092 of 2022
RE Aburili, J
November 7, 2024
Between
Lilian Otieno
Appellant
and
Kilimani Hospital
Respondent
(An appeal arising out of the Judgment and Decree of the Honourable G.C. Serem in the Chief Magistrate’s Court at Kisumu delivered on the 1st September 2022 in Kisumu CMCC No. E517 of 2021)
Ruling
1. From the annextures to the application dated 25th October, 2024 seeking for stay of execution of decree in the lower court and costs assessed in this court, the Appellant/Applicant has already paid the costs assessed in this court on appeal.
2. Accordingly, there is nothing more to be executed as the matter is settled.
3. Concerning the application of execution of decree of the lower court, only the lower court can execute its decree and in addition, as there is no appeal pending, only the lower court can stay execution of the decree that was upheld by this court on appeal.
4. Further, as the execution process by way of proclamation and attachment begun way back on 27th September 2024, this court cannot stay a process which is likely to be completed.
5. Nonetheless the Appellant has the opportunity to approach the lower court to seek reprieve to settle the decree in instalments as sought in the application before this court and that will be in the discretion of the lower court to grant the appropriate orders.
6. Accordingly, as there is nothing else pending before this court, and as the stay sought ought to have been made in the lower court where there is pending an unsettled decree and not before this court, the application dated 25th October 2024 for stay of execution of decree of the lower court in Kisumu CMCC No. E517 of 2021 is hereby declined and dismissed with no orders as to costs and this file is closed.
7. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 7TH DAY OF NOVEMBER, 2024. R. E. ABURILIJUDGE