[2020] KEHC 1668 (KLR)
The court held that although an appeal does not automatically stay enforcement of a decree, the pendency of an appeal is evidence that the litigation is not yet finalized. Enforcing the decree by mandamus before the appeal is determined could result in the court acting in vain, especially if the appeal is successful...
Source-derived case information.
- Citation
- [2020] KEHC 1668 (KLR)
- Parties
- Applicant: Republic; Respondent: Jacinta Aluoch Odhiambo, County Secretary, Kakamega County; Respondent: Geoffrey Nafuko Omulayi, Finance Officer/Treasurer, Kakamega County
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 30 of 2020
- Procedural Posture
- Judicial Review / Ruling on Motion for Mandamus Pending Appeal
- Outcome
- Determination of the motion for mandamus is held in abeyance pending the outcome of the appeal.
- Judges
- DN Musyoka
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Decrees, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Jacinta Aluoch Odhiambo, County Secretary, Kakamega County
Respondent
Geoffrey Nafuko Omulayi, Finance Officer/Treasurer, Kakamega County
Respondent
Procedural Posture
Judicial Review / Ruling on Motion for Mandamus Pending Appeal
Legal Issues
- 1 Whether a mandamus order should issue to enforce a decree against government when an appeal is pending.
- 2 Whether the pendency of an appeal justifies holding in abeyance the determination of a motion for mandamus.
Ratio Decidendi
The court held that although an appeal does not automatically stay enforcement of a decree, the pendency of an appeal is evidence that the litigation is not yet finalized. Enforcing the decree by mandamus before the appeal is determined could result in the court acting in vain, especially if the appeal is successful and the decree is overturned. Therefore, the court found it prudent to hold the determination of the motion for mandamus in abeyance until the appeal is heard and determined, to avoid prejudicing the appellate process and to ensure that the court's orders are not rendered nugatory.
Court Disposition
Determination of the motion for mandamus is held in abeyance pending the outcome of the appeal.
Orders
- The determination of the Motion dated 7th July 2020 is held in abeyance pending hearing and determination of Kisumu CACA No. 54 of 2020.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW NO. 30 OF 2020
REPUBLIC.................................................................................APPLICANT
VERSUS
JACINTA ALUOCH ODHIAMBO, COUNTY
SECRETARY, KAKAMEGA COUNTY.......................1ST RESPONDENT
GEOFFREY NAFUKO OMULAYI,FINANCE OFFICER/
TREASURER, KAKAMEGA COUNTY......................2ND RESPONDENT
RULING
1. What is for determination is the Motion dated 7th July 2020, seeking a mandamusorder against the respondents, with respect to enforcement of an order and a money decree made in Kakamega HC Misc. No. 157 of 2014 and Civil Suit No. 14 of 2017. The same was canvassed by way of written submissions. Both sides filed detailed written submissions, supported by case law.
2. From the filings, both the submissions and the affidavits, it emerged that there is an appeal against the decree in Kakamega HC Misc. No. 157 of 2014 and Civil Suit No. 14 of 2017, being Kisumu CACA No. 54 of 2020. Clearly, therefore, the decree on record is not final.
3. The order of mandamus is issued in execution or enforcement of a decree against government. Ideally, where an appeal pends against an order or decree, the same does not operate as a stay of enforcement of the decree or order. However, pendency of an appeal is evidence that the litigation is not yet complete or finalized over the matter in dispute or controversy. A determination of the appeal in favour of the appellant could have serious consequences, where the decree has since been enforced by way of execution.
4. In view of the above, I am of the view that this court should not consider the Motion before it on the mandamus order. Let the respondents exhaust the appeal options available to them before the Motion is determined, for the court should not act in vain. Determination of the Motion, dated 7th July 2020, is therefore, to be held in abeyance, pending hearing and determination of the appeal in Kisumu CACA No. 54 of 2020.
5. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS.....20th.......DAY OF.......November........2020
W MUSYOKA
JUDGE