[2005] KEHC 2941 (KLR)
The court dismissed the application for stay of execution on the grounds that the applicants failed to specify the particular order sought to be stayed and did not provide the date of the order. The applicants also failed to demonstrate that the appeal would be rendered nugatory if stay was not granted, as there was...
Source-derived case information.
- Citation
- [2005] KEHC 2941 (KLR)
- Parties
- Appellant: Rose Gathigia W. Kirathe; Appellant: Michael Mbae; Appellant: Daniel Kiama Wamiti; Respondent: Duncan Kanyua
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 88 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Stay of Execution, Appeals Process, Delay in Filing, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Gathigia W. Kirathe
Appellant
Michael Mbae
Appellant
Daniel Kiama Wamiti
Appellant
Duncan Kanyua
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution pending the hearing and determination of their appeal in the Court of Appeal.
- 2 Whether the application sufficiently specifies the order sought to be stayed.
- 3 Whether the applicants have demonstrated that the appeal will be rendered nugatory if stay is not granted.
Ratio Decidendi
The court dismissed the application for stay of execution on the grounds that the applicants failed to specify the particular order sought to be stayed and did not provide the date of the order. The applicants also failed to demonstrate that the appeal would be rendered nugatory if stay was not granted, as there was no evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The court further noted the applicants' history of delay and misuse of previous stays, as well as the inordinate delay in filing the present application. These factors led the court to conclude that the applicants were not entitled to the discretionary relief sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 18th January 2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL 88 OF 1999
ROSE GATHIGIA W. KIRATHE )
MICHAEL MBAE )……………….APPELLANTS/APPLICANTS
DANIEL KIAMA WAMITI )
Versus
DUNCAN KANYUA……………………………..….........………RESPONDENT
RULING
Notice of Motion dated 18th January 2005 praying for “stay of execution in this appeal Nyeri High Court Civil Appeal No. 88 of 1999 and Nyeri Senior Principal Magistrate’s Civil Case No. 185 of 1997 pending the hearing and determination of the applicant’s Civil Appeal No. 204 of 2004 pending before the Court of Appeal.”
The Respondent opposes the application. There was a decision in Nyeri Senior Principal Magistrate’s Court Civil Case No. 185 of 1997 from which there was an appeal to this court in High Court Civil Appeal No. 88 of 1999. Both courts dismissed the Applicant’s case and he has now appealed in the Court of Appeal Civil Appeal NO. 204 of 2004. While the appeal in the Court of Appeal is pending, the Applicant is now in this court praying in this application for a stay of execution.
From what has been brought to my attention during the hearing of this Notice of Motion, I hold the view that the said Notice of Motion should be dismissed and the same is hereby ordered dismissed with costs to the Respondent for the following reasons: Firstly, none of the prayers in the application specifies the particular order of this court or the court below sought to be stayed. The date of the order in question is very important.
Secondly, the Applicants have not persuaded me to agree with them that the appeal will be rendered a nugatory. The sum is said to be Ksh.130,000/= and a part from mere allegations, it has not been proved that the Respondent is not able to refund that sum of money in case the Applicant’s appeal succeeds.
Thirdly, the Applicants give me the impression that they are not people who will prosecute the appeal once they obtain a stay as they have twice obtained temporary stays which instead of using to pay the decretal sum as agreed, they used the stays to prolong denying the decree holder the fruits of the decree.
Fourthly, there has been inordinate delay in filing this application for a stay.
Dated this 10th day of March 2005.
J. M. KHAMONI
JUDGE
Present:
Mr. T. Mwangi for the Appellant
Mr. Mwangi Waiganjo for Mr. Mahinda for the Respondent