[2006] KEHC 2102 (KLR)
The court found that the appellant had presented sufficient grounds for the grant of a stay of execution pending appeal. The court exercised its discretion to preserve the status quo until the appeal is determined, noting that the interests of justice would be served by granting the stay. The court did not make a...
Source-derived case information.
- Citation
- [2006] KEHC 2102 (KLR)
- Parties
- Appellant: Paul Murunga; Respondent: Nelson Kaburu Felix
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 71 of 2006
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted pending determination of the appeal. Costs in the cause.
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Murunga
Appellant
Nelson Kaburu Felix
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the decree and judgment pending the determination of the appeal.
- 2 Whether the appellant was aware of the hearing date when the ex parte judgment was entered.
- 3 Whether the application for stay of execution should be granted in the interests of justice.
Ratio Decidendi
The court found that the appellant had presented sufficient grounds for the grant of a stay of execution pending appeal. The court exercised its discretion to preserve the status quo until the appeal is determined, noting that the interests of justice would be served by granting the stay. The court did not make a finding on the truthfulness of the appellant's claim regarding notice of the hearing date but considered that the appeal raised arguable issues that warranted protection against execution until the appellate process was concluded. Costs were ordered to be in the cause.
Court Disposition
Application for stay of execution granted pending determination of the appeal. Costs in the cause.
Orders
- Stay of execution of the decree and judgment entered on 10.1.05 and all further proceedings pending before the subordinate court is granted until the determination of this appeal.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 71 of 2006
PAUL MURUNGA ………………….....................................…………. APPELLANT
VERSUS
NELSON KABURU FELIX …………............................………….. RESPONDENT
(Being an appeal against the ruling of the Chief Magistrates Court at Milimani Commercial Court, Civil Case No.473 of 1995 by the Honourable Magistrate Mr. Cherono on the 26th day of January 2006.
BETWEEN
NELSON KABURU KABURU FELIX ……………………….................... PLAINTIFF
VERSUS
PAUL MURUNGA ……………………………………………............... DEFENDANT
RULING
1. BACKGROUND OF APPLICATION
1. The appellant/applicant, used to be an auctioneer, now deregistered. He had certain work with the respondent/respondent an advocate of the High Court who appears in person in this application.
2. The respondent/respondent sued the appellant applicant in the subordinate courts for moneys owned and due. It is alleged when the suit came up for hearing, dates having been duly given in court the defendant appellant was absent. He alleged that he was not aware of the hearing date of his case. His former advocate and the respondent/respondent deponed that he was present when the hearing date was taken.
3. When the case came up for hearing an exparte judgment was entered.
4. The appellant/original defendant filed the appeal before court stating that there was a related ruling in case EJ473/95 in which this same matter eminates. He filed this criminal application before this appeals court in which he prayed that there be a stay of execution of the decree and judgment entered on 10. 1.05 and all further proceeding pending before that particular court till the determination of the appeal lodged against the ruling of 26. 1.06 dismissing the application for setting aside the said ruling.
5. This application was opposed. The respondent stated that the appellant was basically not truthful on this matter and as such ought not to be granted the prayers sort.
II: Findings
6. The application for stay of execution be and is hereby granted, with costs being in the cause, until the determination of this appeal.
Dated this 18th day of May 2006 at Nairobi.
M.A. ANG’AWA
JUDGE
Nelson Kaburu Felix in person respondent/respondent/original plaintiff
A.N. Ngunjiri & Co. Advocates for the appellant/applicant original defendant