[2006] KECA 298 (KLR)
The Court of Appeal granted a stay of execution pending the determination of the application for leave to file an appeal out of time, primarily because the respondent conceded the application and undertook not to execute the decree prematurely. The court found that the interests of justice required the preservation...
Source-derived case information.
- Citation
- [2006] KECA 298 (KLR)
- Parties
- Applicant: Richard Akwesera Onditi; Respondent: Kenya Commercial Finance Co. Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 10 of 2006
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- Application for stay of execution granted.
- Legal Topics
- Stay of Execution, Appeal Out of Time, Statutory Power of Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Akwesera Onditi
Applicant
Kenya Commercial Finance Co. Ltd
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether a temporary stay of execution should be granted pending the determination of an application for leave to file an appeal out of time.
- 2 Whether the respondent should be prevented from exercising its statutory power of sale.
Ratio Decidendi
The Court of Appeal granted a stay of execution pending the determination of the application for leave to file an appeal out of time, primarily because the respondent conceded the application and undertook not to execute the decree prematurely. The court found that the interests of justice required the preservation of the status quo until the application for leave to appeal out of time was determined. The court also noted that the order did not prevent the respondent from exercising its statutory power of sale, indicating that the stay was limited in scope to the execution of the judgment and decree, not the statutory remedies available to the respondent.
Court Disposition
Application for stay of execution granted.
Orders
- Temporary stay of execution of the judgment and decree pending determination of the application for leave to file an appeal out of time.
- Costs in the intended appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: OMOLO, TUNOI & O’KUBASU, JJ.A.
CIVIL APPLICATION NO. NAI. 10 OF 2006
BETWEEN
RICHARD AKWESERA ONDITI……………………............................…..APPLICANT
AND
KENYA COMMERCIAL FINANCE CO. LTD……..............................……RESPONDENT
(Application for stay of execution from a judgment of the High Court of Kenya at Kakamega (Tanui J.) dated 18th September, 2001
in
H.C.C.C. NO. 65 OF 1993)
*************
RULING OF THE COURT
After the applicant had rested his submissions in support of his application for a temporary stay of execution of the judgment and decree pending his intended appeal, Mr. Shivaji, counsel for the respondent, however, informed the Court that he was prepared to concede the application and that he would not prematurely execute the decree.
We have considered the submissions of both parties and we think that in the interest of justice we should grant the application and issue an order of stay of execution pending the determination of the application for leave to file an appeal out of time. We so order. In doing so we take into account that we are not being asked to prevent the respondent from exercising its statutory power of sale. We so order. Costs in the intended appeal
MADE at KISUM this 31st day of MARCH, 2006.
R.S.C. OMOLO
……………………………..
JUDGE OF APPEAL
P.K. TUNOI
…………………………..
JUDGE OF APPEAL
E.O. O’KUBASU
…………………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR