[2004] KEHC 464 (KLR)
The court found that the applicant failed to comply with the procedural requirements of the Matrimonial Causes Rules, specifically Rules 3 and 8(a), as the petition was not properly addressed to the court nor certified as required. Furthermore, the court determined that there was no evidence that the respondent, a...
Source-derived case information.
- Citation
- [2004] KEHC 464 (KLR)
- Parties
- Appellant: Richard Mulu Mutua; Respondent: Rhoda Mumbua Mulwa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 113 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs to respondent
- Judges
- RPV Wendoh
- Legal Topics
- Stay of Execution, Matrimonial Causes, Costs Awards, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Mulu Mutua
Appellant
Rhoda Mumbua Mulwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether there exists a decree capable of being stayed in the circumstances of this case.
- 3 Whether the applicant will suffer irreparable harm if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to comply with the procedural requirements of the Matrimonial Causes Rules, specifically Rules 3 and 8(a), as the petition was not properly addressed to the court nor certified as required. Furthermore, the court determined that there was no evidence that the respondent, a teacher, would be unable to repay the costs if the appeal succeeded, and the applicant did not demonstrate that he would suffer irreparable harm if the stay was not granted. The court also noted that a certificate of costs alone does not constitute a decree capable of being stayed. Consequently, the applicant did not make out a sufficient case for the grant of stay pending appeal.
Court Disposition
application dismissed with costs to respondent
Orders
- The application for stay pending appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 113 OF 2003
RICHARD MULU MUTUA..............................APPELLANT
VERSUS
RHODA MUMBUA MULWA.........................RESPONDENT
R U L I N G
The appellant seeks orders of stay of the decree issued by the lower court pending appeal and that execution be stayed. The application is brought under Rule 3 (3) of Matrimonial Causes Rules and supported by the affidavit of the applicant. The applicant had filed a petition in the lower court for dissolution of the marriage. Annexture MK1 is a copy of the petition and that when the petition was filed and served, the respondent filed an answer MK2. That the lower court struck out the petition on application by the respondent as per the court’s ruling MK3. The appellant is dissatisfied with the ruling and has appealed against it as per memorandum of appeal MK4. A decree has been obtained and costs assessed and notice to show cause issued and he believes that this appeal has good chances of success.
The application is opposed and a replying affidavit filed by the respondent and the gist of the affidavit is that there is no decree capable of being stayed and there is no merit in the application and that the application is meant to frustrate the respondent award making her incur unnecessary costs.
For an order of stay pending appeal to issue, the applicant has to demonstrate that he has an arguable appeal and the court has had a look at the provisions of Rule 3 and 8A of the Matrimonial Causes Act and a look at the petition as filed MKI contravenes Rule 3 and 8 (a) of Matrimonial Causes Rules. The petition was not addressed to the court as required by Rule 3 nor was it certified as required by Rule 8 (a) Matrimonial Causes Rules.
The respondent is said to be a teacher. The costs whose execution is supposed to be stayed are Kshs.22,395/-. In annexture MK1 – it is indicated that the respondent is a teacher.
There is no evidence that the respondent can not be able to repay the said costs in the event that the appeal succeeds. The applicant has not demonstrated that he will suffer irreparable harm if the order of stay is not granted.
Counsel for respondent contends that there is no decree that can be stayed. The decree Nisi or absolute is different from a decree for costs. I note a certificate of costs was prepared. There can be no execution except there be a decree. If the applicant had fulfilled the requirements for grant of stay the court would have indeed stayed the decree in respect of costs.
However the applicant has not made out a good case for stay pending appeal and the application is dismissed with costs to respondent.
Dated, read and delivered at Machakos this ……………….. day of ………………………. 2004.
R. V. WENDOH
JUDGE