[2011] KEHC 238 (KLR)
The court found that if the order for stay is not granted, the suit will be re-heard before the appeal is determined, which would render the intended appeal nugatory. The court was satisfied that the applicants had demonstrated sufficient cause for the grant of a stay of execution. Accordingly, the motion for stay...
Source-derived case information.
- Citation
- [2011] KEHC 238 (KLR)
- Parties
- Appellant: Peter Kibe Wangai; Respondent: Paul Temu Nderemo; Respondent: Camp Garbatulla Catholic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 18B of 2009
- Procedural Posture
- Civil Appeal / Ruling on Motion for Stay of Execution Pending Appeal
- Outcome
- motion for stay of execution allowed
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Retrial Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kibe Wangai
Appellant
Paul Temu Nderemo
Respondent
Camp Garbatulla Catholic
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the order for retrial pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if the stay is not granted.
Ratio Decidendi
The court found that if the order for stay is not granted, the suit will be re-heard before the appeal is determined, which would render the intended appeal nugatory. The court was satisfied that the applicants had demonstrated sufficient cause for the grant of a stay of execution. Accordingly, the motion for stay was allowed in terms of the specified prayers, with costs to abide the outcome of the intended appeal.
Court Disposition
motion for stay of execution allowed
Orders
- Stay of execution of the order for retrial issued on 17th September 2010 is granted pending the hearing and determination of the intended appeal.
- Costs to abide the outcome of the intended appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL APPEAL CASE NO. 18B OF 2009
PETER KIBE WANGAI........................................................................APPELLANT/RESPONDENT
VERSUS
PAUL TEMU NDEREMO..................................................................1ST DEFENDANT/APPLICANT
CAMPGARBATULACATHOLIC.....................................................2ND DEFENDANT/APPLICANT
RULING
The subject matter of this ruling is the Motion dated 21st March 2011 in which Paul Temo Nderemo and Camp Garbatulla Catholic, the 1st and 2nd Respondents, applied for an order of stay of execution of the order for retrial issued on 17th September 2010 pending appeal. The Motion is supported by the affidavit of Phyllis Wanjiru Waruhiu, Advocate. Peter Kibe Wangai, opposed the Motion by filing the replying affidavit he swore on 18th April 2011.
It is important at this juncture to set out in brief the background of the current Motion. The Appellant herein was given an order extending time to file a compensatory suit out of time against the Respondents. Pursuant to the aforesaid order, the Appellant filed Nyeri C.M.C.C. No. 481 of 2005. The suit was heard by L.W. Gitari, learned Senior Principal Magistrate. by her judgment delivered on 30th April, 2008, the learned Senior Principal Magistrate, dismissed the suit on the basis that the Appellant did not deserve to be given an extension of time to file the suit out of time. The Appellant was aggrieved hence he preferred this appeal. This Court heard the appeal and allowed the same on 17th September 2010. this Court set aside the order dismissing the suit and substituted it with an order directing the case to be re-heard afresh. The Respondents were aggrieved hence they filed a notice of appeal. The Respondents are now beseeching this Court to stay the execution of the order pending the hearing and determination of the intended appeal.
It is the submission of the Respondents that unless the order for stay is given, they stand to suffer substantial loss in that their appeal will be rendered useless. It would appear the Appellant does not deny that the intended appeal will be rendered useless if the order for stay is not given. The Appellant’s main worry is the period the appeal may take to file and conclude the intended appeal.
On my part and after considering the rival submissions, plus the material placed before this Court, I am convinced that the Motion has merit. If the order for stay is not given, the suit will be re-heard afresh before the appeal is heard. This will render the intended appeal nugatory. On the basis of this ground, I allow the Motion in terms of prayers 3 and 4 with costs abiding the outcome of the intended appeal.
Orders in this file should apply to Nyeri H.C.C.C.A..
No. 19 of 2009 George Maina Wangai & Another =Vs= Paul Teremo Nderemo & Another.
Dated and delivered at Nyeri this 21st day of October 2011.
J. K. SERGON
JUDGE