[2002] KECA 232 (KLR)
The Court found that the applicant failed to satisfy the two conditions required for the grant of a stay of execution under rule 5(2)(b) of the Court of Appeal Rules. Specifically, the Court was not persuaded that the intended appeal was arguable or had a probability of success. Consequently, the Court exercised its...
Source-derived case information.
- Citation
- [2002] KECA 232 (KLR)
- Parties
- Applicant: Paul Wathiru Ngure; Respondent: Philip Njoroge Ngure; Respondent: Michael Muhoro Ngure
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 374 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- EO O'Kubasu
- Legal Topics
- Stay of Execution, Trusts in Land, Appealability, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Wathiru Ngure
Applicant
Philip Njoroge Ngure
Respondent
Michael Muhoro Ngure
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal warranting a stay of execution.
- 2 Whether the appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The Court found that the applicant failed to satisfy the two conditions required for the grant of a stay of execution under rule 5(2)(b) of the Court of Appeal Rules. Specifically, the Court was not persuaded that the intended appeal was arguable or had a probability of success. Consequently, the Court exercised its discretion to dismiss the application for stay, holding that it would not be proper to grant the stay in the circumstances presented.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, LAKHA & O'KUBASU, JJ.A.) CIVIL APPLICATION NO. NAI. 374 OF 2001
BETWEEN
PAUL WATHIRU NGURE ............................................. APPLICANT
AND
PHILIP NJOROGE NGURE .............................. 1ST RESPONDENT
MICHAEL MUHORO NGURE .......................... 2ND RESPONDENT
(Application for stay of execution pending the hearing and determination of the appeal against the Judgment and Decree of the High Court of Kenya at Nairobi (Hon. Justice Shaikh Amin) dated 10th day of May, 2001 in H.C.C.C. NO. 2330 OF 1997) ********************* RULING
RULING OF THE COURT
This is the defendant's application for a stay under rule 5(2)(b)of the Rules of this Court seeking a stay of execution of the judgment and decree of the superior court (Sheikh Amin, J.) delivered on 10 May, 2001.
The facts are few and simple. The plaintiffs claim a declaration that the defendant was registered as the proprietor of Land Parcel Ndumberi/Githunguri/Githiga/531and held the same on behalf and in trust of the plaintiffs herein and that the aforesaid trust be forthwith determined and the defendant do transfer to the plaintiffs 1. 25 acres each out of the said Land Parcel as per the draft plan agreed between the plaintiffs and the defendant on 17 August, 1994 and that the incidental expenses thereof be borne by the parties herein equally.
After the hearing of the suit concluded, the learned judge made an order in terms of the claim as above. The defendant's appeal therefrom being Civil Appeal No. 268 of 2001 has been filed in this Court and is pending.
Pending such hearing of the appeal, a stay is sought. The principles on which this Court grants a stay are well settled. Two conditions have to be satisfied by the applicant: first, it must be shown that the intended appeal is arguable and, secondly, it must also be shown that if stay is withheld, the appeal will be rendered nugatory.
We have accordingly considered the facts of this case and applying the principles above stated, we have not been persuaded that the intended appeal has a probability of success. That being so, the application for stay fails. We do not see how, in the circumstances, it would be proper to exercise our discretion to grant this application.
This application for stay, therefore, fails and is dismissed with costs.
Dated and delivered at Nairobi this 19th day of April, 2002.
R.S.C. OMOLO
.....................
JUDGE OF APPEAL
A.A. LAKHA
.....................
JUDGE OF APPEAL
E. O'KUBASU
.....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR