[2021] KECA 902 (KLR)
The Court found that the order sought to be stayed was a negative order, only capable of execution as to costs, and thus not subject to a stay of execution. Further, while the intended appeal was not deemed frivolous, the applicant failed to demonstrate how the appeal would be rendered nugatory if stay was not...
Source-derived case information.
- Citation
- [2021] KECA 902 (KLR)
- Parties
- Applicant: Riziki Enterprises Limited; Respondent: Safari Kadenge Kathupa
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 71 of 2018
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja, DK Musinga
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Negative Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Riziki Enterprises Limited
Applicant
Safari Kadenge Kathupa
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the High Court ruling pending appeal.
- 2 Whether the order sought is capable of being stayed as it is a negative order.
- 3 Whether the applicant has demonstrated that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that the order sought to be stayed was a negative order, only capable of execution as to costs, and thus not subject to a stay of execution. Further, while the intended appeal was not deemed frivolous, the applicant failed to demonstrate how the appeal would be rendered nugatory if stay was not granted. The Court also noted the issue of the notice of appeal being filed out of time, raising questions as to its competence. As the applicant did not satisfy both requirements for the grant of stay—arguability of the appeal and risk of the appeal being rendered nugatory—the application failed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT MALINDI
(CORAM: W. KARANJA, MUSINGA & GATEMBU, JJ.A.)
CIVIL APPLICATION NO. 71 OF 2018 (UR 54 OF 2018)
BETWEEN
RIZIKI ENTERPRISES LIMITED................................ APPLICANT
AND
SAFARI KADENGE KATHUPA...................................RESPONDENT
(Being an application for stay/conservatory orders/injunctive orders pending the hearing and determination of an intended
appeal from the decision of the High Court of Kenya at Malindi (W. Korir, J.) delivered on 19thApril 2018 in
Miscellaneous Civil Application No. 38 of 2017)
**********************
RULING OF THE COURT
1. In its application before us dated 14th June 2018, the applicant, Riziki Enterprises Limited, seeks an order for stay of execution of the ruling delivered by the High Court at Malindi (W. Korir, J.) on the 19th April 2018 pending the hearing and determination of its intended appeal. In the said ruling, the court dismissed the applicant’s application for leave to appeal out of time against a judgment of the Chief Magistrates’ Court in Malindi awarding the respondent general and special damages. The applicant’s prayer to stay execution of that judgment was also rejected by the Judge.
2. The grounds of the application as amplified in the supporting affidavit sworn by Maurice Kilonzo advocate are that, aggrieved by the ruling of the High Court, the applicant filed a notice of appeal dated 7th May 2018; that the intended appeal is arguable and has high chances of success as demonstrated in the draft memorandum of appeal; that should the judgment of the Magistrates’ Court be executed in the meanwhile, the intended appeal will be rendered nugatory.
3. In his replying affidavit in opposition to the application, Safari Kadenge Kathupa set out the background to the matter and deposed that he is entitled to enjoy the fruits of the judgement; that the notice of appeal dated 7th May 2018 on which the applicant’s present application is pegged was filed out of time contrary to Rule 75(2) of the Court of Appeal Rules; that the intended appeal is frivolous; that should the Court be inclined to allow the applicant’s application, it should require the applicant to deposit the entire decretal amount plus costs (Kshs.620,948. 30) in a joint account in the names of the advocates for the parties.
4. We have considered the application and the written submissions filed by counsel for both parties and the authorities cited. To begin with, the impugned ruling dismissed, with costs, the applicant’s application for leave to appeal out of time and for stay of execution. The only part of that order capable of execution is in relation to the award of costs. It is otherwise a negative order and not capable of stay. SeeWestern College of Arts and Applied Sciences vs. Oranga & Others (1976-80) 1 KLR.
5. Furthermore, it is incumbent upon the applicant to demonstrate that the intended appeal is arguable and that if the orders sought are declined, and the appeal ultimately succeeds, the same will be rendered nugatory. See Stanley Kangethe Kinyanjui vs. Tony Keter & 5 Others, Civil Application No. Nai 31/2012. Although, based on the draft memorandum of appeal, we do not consider the intended appeal to be frivolous, the applicant has not in our view demonstrated how, by declining its request, the appeal will be rendered nugatory should the appeal ultimately succeed.
6. There is also the issue raised by respondent that the impugned ruling was delivered on 19th April 2018 and that the notice of appeal was filed outside the 14 days prescribed under Rule 75(2) of the Court of Appeal Rules which raises the question of the competence of that notice.
7. All in all, as the applicant has not fulfilled one of the two necessary requirements aforesaid, the application fails and is hereby dismissed with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.
W. KARANJA
………………………….
JUDGE OF APPEAL
D. K. MUSINGA
…………..…………….
JUDGE OF APPEAL
S. GATEMBU KAIRU, (FCIArb)
…………….………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR