[2011] KEHC 667 (KLR)
The court found that the applicant failed to demonstrate any prejudice that would be suffered if a stay of execution was not granted, as the applicant was not in possession of the suit premises and the taxed costs were recoverable if the appeal succeeded. The court held that the judgment of the Hon. Justice Ibrahim...
Source-derived case information.
- Citation
- [2011] KEHC 667 (KLR)
- Parties
- Plaintiff: Romad Enterprises Limited; Defendant: Matiku Kyengo Kavingo through Nzeli Matiku the legal representative
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 292 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution dismissed
- Legal Topics
- Stay of Execution, Vesting Orders, Appeals, Costs Taxation
- 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
Romad Enterprises Limited
Plaintiff
Matiku Kyengo Kavingo through Nzeli Matiku the legal representative
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the applicant will suffer prejudice if stay is not granted.
- 3 Whether the taxed costs are recoverable if the appeal succeeds.
Ratio Decidendi
The court found that the applicant failed to demonstrate any prejudice that would be suffered if a stay of execution was not granted, as the applicant was not in possession of the suit premises and the taxed costs were recoverable if the appeal succeeded. The court held that the judgment of the Hon. Justice Ibrahim was well-reasoned and that the issues raised could be fully ventilated at the hearing of the appeal. Accordingly, the court exercised its discretion to decline the order for stay of execution, finding no sufficient cause to grant the application at this stage.
Court Disposition
application for stay of execution dismissed
Orders
- The application for stay of execution is declined.
- Costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 292 OF 2007 (O.S.)
IN THE MATTER OF:AN APPLICATION FOR A VESTING ORDER FOR PLOT NO. 1109/VI/MN
AND
IN THE MATTER OF:KITUI RMCC 171/1997 MBULI MUTONGOI
=VERSUS=
MATIKU KYENGO KAVINGO
BETWEEN
ROMAD ENTERPRISES LIMITED................................................PLAINTIFF
=VERSUS=
MATIKU KYENGO KAVINGO throughNZELI MATIKU the legal representative...........................................DFENDANT
RULING
By this Notice of Motion dated 3rd June 2011 the Applicants seek a stay of execution of the judgement delivered by Hon. Justice M.K. Ibrahim on 20th May 2011. MR. ODDIAGA argued the application on behalf of the Applicant. The same was strenuously opposed by Mr. Khatib for the Respondent.
I have read the judgment of the Hon. Justice Ibrahim. I have also considered the submissions made by learned counsel. At this point it is not my duty to delve into the merits or otherwise of the intended appeal. Suffice to say I find that the Hon. Judge did render an elaborate and well-reasoned decision taking into account all pertinent points. I further note that costs were taxed by consent at Kshs.150,000/-. As Mr. Khatib has pointed out this sum is recoverable if the appeal is successful. The Applicant is not in possession of the suit premises and stands to suffer no prejudice if a stay is not granted. It is my considered opinion that a stay at this stage is not merited. The matter can be fully ventilated at the hearing of the appeal. I therefore decline to order a stay as prayed.
Dated and Delivered in Mombasa this 30th day of November 2011.
M. ODERO
JUDGE
In the presence of:
Mr. Khatib for Plaintiff
Ms. Njuguna holding brief for Mr. Oddiaga for Defendant