[2001] KECA 233 (KLR)
The Court of Appeal dismissed the application for stay of execution on the grounds that the applicant failed to demonstrate the existence of an arguable appeal and did not satisfy the court that the appeal would be rendered nugatory if the stay was withheld. The court emphasized that its decisions are based on legal...
Source-derived case information.
- Citation
- [2001] KECA 233 (KLR)
- Parties
- Applicant: Ruth Wanza Ndumbu; Respondent: Symon Mwangi Kimaru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 47 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Appeals, Arguable Appeal, Nugatory Appeal Test
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Wanza Ndumbu
Applicant
Symon Mwangi Kimaru
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal warranting a stay of execution.
- 2 Whether the appeal would be rendered nugatory if a stay is not granted.
Ratio Decidendi
The Court of Appeal dismissed the application for stay of execution on the grounds that the applicant failed to demonstrate the existence of an arguable appeal and did not satisfy the court that the appeal would be rendered nugatory if the stay was withheld. The court emphasized that its decisions are based on legal principles rather than sympathy for the applicant's predicament. Accordingly, the application did not meet the threshold for the grant of a stay under Rule 5(2)(b) of the Court of Appeal Rules.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, LAKHA & KEIWUA, JJ.A.) CIVIL APPLICATION NO. NAI. 47 OF 2001 (28/2001 UR)
BETWEEN
RUTH WANZA NDUMBU ........................................... APPLICANT
AND
SYMON MWANGI KIMARU ................................... RESPONDENT
(Application for stay of Execution pending an intended appeal from a Judgment of the High Court of Kenya at Nairobi (Ramsey, Commissioner of Assize) dated 10th day of May, 2000
in
H.C.C.C. NO. 275 OF 1999) *************
RULING OF THE COURT
This is an application for stay under rule 5(2)(b). Having carefully considered the submissions made by the respondent, we are not persuaded that the applicant has any arguable appeal. Nor are we satisfied that the appeal will be rendered nugatory if a stay is withheld. Much as we sympathise with the predicament in which the applicant finds herself this Court does not act on emotions or sympathies. The application fails and is dismissed with costs.
Dated and delivered at Nairobi this 7th day of May, 2001.
R.S.C. OMOLO ............................ JUDGE OF APPEAL
A.A. LAKHA ...................... JUDGE OF APPEAL
M. KEIWUA .......................... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR