[2020] KECA 183 (KLR)
The Court found that the application for stay of execution was without merit for two principal reasons: first, the decretal sum had already been fully settled by the applicants' insurers, making the application moot as there was nothing left to stay; second, the applicants had not lodged a notice of appeal, which is...
Source-derived case information.
- Citation
- [2020] KECA 183 (KLR)
- Parties
- Applicant: Samuel Kilemi; Applicant: Peter Kilemi; Respondent: Festus Gituma Kathuka (Suing on behalf of the estate of David Mwangi Njoroge, Deceased)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 83 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja, FI Koome
- Legal Topics
- Stay of Execution, Appeals Process, Fatal Accident Claims, Loss of Dependency, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kilemi
Applicant
Peter Kilemi
Applicant
Festus Gituma Kathuka (Suing on behalf of the estate of David Mwangi Njoroge, Deceased)
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the application for stay of execution is moot given the decretal sum has already been settled.
- 2 Whether the applicants are properly before the Court without having lodged a notice of appeal as required under Rule 5(2)(b) of the Court of Appeal Rules.
- 3 Whether the threshold for granting a stay of execution pending appeal has been met.
Ratio Decidendi
The Court found that the application for stay of execution was without merit for two principal reasons: first, the decretal sum had already been fully settled by the applicants' insurers, making the application moot as there was nothing left to stay; second, the applicants had not lodged a notice of appeal, which is a mandatory procedural requirement for invoking the Court's jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules. The absence of a notice of appeal rendered the application procedurally defective and irregular. Consequently, the application failed to meet the threshold for granting a stay of execution as established in relevant case law, and was dismissed with costs to...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, (P), KARANJA & KOOME, JJ.A)
CIVIL APPLICATION NO. 83 OF 2018
BETWEEN
SAMUEL KILEMI ………………………..........……………..1STAPPLICANT
PETER KILEMI …………………………..…….....…...…… 2NDAPPLICANT
AND
FESTUS GITUMA KATHUKA(Suing on behalf of the estate of
DAVID MWANGI NJOROGE(Deceased)……………………..RESPONDENT
(An application for stay of execution pending the filing, hearing and determination of an intended appeal from the judgment of the High Court of Kenya at Meru (A. Mirima, J.) delivered on 9thday of October, 2017 in HCCCA No. 306 of 2013)
RULING OF THE COURT
Following a fatal road accident in which the deceased died, the respondent instituted a suit in the Chief Magistrate’s court at Meru against the applicants blaming them for the accident. The court found them liable and awarded the respondent Kshs. 1,040,000 in loss of dependency, among other damages.
The applicants’ first appeal to the High Court was dismissed after the learned Judge, (Mrima, J.) found that it had been filed out of time and without leave.
The applicants have now moved this Court praying that we stay execution of the decree as they pursue the appeal. The auctioneers have proclaimed their goods and they are apprehensive that if the stay sought is not granted, they will suffer irreparable loss and the appeal will be rendered nugatory yet they have an arguable appeal.
In his replying affidavit, the respondent has indicated that since the decretal sum was fully settled in 2018 by the respondent’s insurers, this application is moot and serves no purpose as there is nothing to stay.
This statement has not been challenged and we are satisfied from it that indeed there is nothing to stay. But apart from that, the applicants have themselves admitted that they did not lodge the notice of appeal, and are therefore before us irregularly as the foundation of an application under Rule 5(2)(b) of the Court of Appeal Rules is the notice of appeal. See Safaricom Limited vs. Ocean View Beach Hotel Limited and 2 othersCivil Application No. 327 of 2009 (UR7).
For these two reasons, this application is bereft of any merit and does not meet the threshold for granting an order of stay as explained in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others[2013] eKLR.
We accordingly dismiss it with costs to the respondent.
Dated and delivered at Nairobi this 20thday of November, 2020.
W. OUKO, (P)
....................................
JUDGE OF APPEAL
W. KARANJA
....................................
JUDGE OF APPEAL
M.K. KOOME
.....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR