[2004] KEHC 2029 (KLR)
The court found that a valid notice of appeal had been filed after the previous one was struck out, and that the applicants had demonstrated a risk of irreparable loss if evicted before the appeal is heard. The court also noted that the applicants were willing to provide security. The fact that one applicant was...
Source-derived case information.
- Citation
- [2004] KEHC 2029 (KLR)
- Parties
- Plaintiff: Rahab Njeri Gichuhi; Plaintiff: Samuel Kinai Gichuhi; Plaintiff: Justice Githumbi Gichuhi; Defendant: Josephine Nyakio Gichuhi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 169 of 1987
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- JW Lessit
- Legal Topics
- Stay of Execution, Notice of Appeal, Irreparable Loss, Security for Costs
- 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
Rahab Njeri Gichuhi
Plaintiff
Samuel Kinai Gichuhi
Plaintiff
Justice Githumbi Gichuhi
Plaintiff
Josephine Nyakio Gichuhi
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the notice of appeal on record is valid and properly served.
- 3 Whether the applicants will suffer irreparable loss if the stay is not granted.
Ratio Decidendi
The court found that a valid notice of appeal had been filed after the previous one was struck out, and that the applicants had demonstrated a risk of irreparable loss if evicted before the appeal is heard. The court also noted that the applicants were willing to provide security. The fact that one applicant was deceased did not affect the rights of the surviving applicants. In the interests of justice and to preserve the subject matter of the appeal, the court exercised its discretion to grant a conditional stay of execution, requiring the applicants to deposit Kshs.1 million or equivalent securities within 30 days, failing which the stay would lapse automatically.
Court Disposition
application allowed with conditions
Orders
- Stay of execution of the judgment and decree granted pending appeal, conditional upon the applicants depositing Kshs.1 million or equivalent securities as ascertained by the Deputy Registrar within 30 days.
- If the required security is not deposited within 30 days, the stay order will automatically lapse.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.169 OF 1987
RAHAB NJERI GICHUHI
SAMUEL KINAI GICHUHI…………..………………PLAINTIFFS
JUSTICE GITHUMBI GICHUHI
VERSUS
JOSEPHINE NYAKIO GICHUHI…………………….DEFENDANT
R U L I N G
The application before court is the NOTICE OF MOTION dated 16th October, 2003, and brought under Order XVI Rule 4(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Rules. The substantive order sought is for a stay of execution of the Judgment and decree of this Honourable Court of 21st March, 1996 and a preservation of the status quo pending the hearing and determination of an appeal to the Court of Appeal.
The main grounds of this application is that the applicant has filed a fresh notice of appeal after the first one was struck out on 23rd September, 2003. That if orders are not granted the applicant may be evicted and if so he stands to suffer irreparable loss and damage.
The application is opposed.
Part of the grounds of opposition are the fact that the application is bad in law, incompetent, totally defective and an abuse of the court process. That the Notice of appeal is improperly on record, that one of the applicants is deceased and was never substituted. That the Notice of appeal has not been served upon the Respondent as required and so is incompetent. I have considered the submissions by both counsels. The decree sought to be stayed was issued in 1996. It followed the Judgment of the court which was delivered on 5th March, 1992, 12 years ago. It is quite clear from the record that the applicants have filed two Notices of appeal one in 1992 and other in 1996 both which were struck off.
The one filed in by Counsel for the applicant in his affidavit was filed one day after the second Notice of Appeal was struck off by the Court of Appeal. It is true there was no need to seek leave to file the further affidavit since application had not been served upon the Respondent. Consequently there is a valid Notice of Appeal which cannot be ignored. It is true that this appeal has taken too long to be heard. The applicant herein claims that they have no place to move to if evicted in execution of the court order. That fact is not challenged. It is therefore probable that irreparable loss and damage will be caused to the applicants if the order is not given. Further that the appeal will be rendered nugatory.
The applicants have declared their preparedness to deposit any security the court may call for. By applicants I mean the surviving applicants to the suit. The fact one of them is deceased does not affect the rights of the surviving ones. I will allow the application on condition that the applicants deposit Kshs.1 million or its equivalent in securities to be ascertained by the Deputy Registrar of the Court whether they meet the value required by the court. Failure to deposit the said sum or securities of similar value, within 30 days from date herein the stay order will automatically vacate or cease.
Dated this 6th day of March, 2004 at Nakuru.
JESSIE LESIIT
JUDGE