[2014] KEHC 5762 (KLR)
The court held that the application for stay of execution was misconceived because the order appealed against was negative in nature, involving only costs. Established legal principle dictates that a stay of execution is not available in respect of negative orders, especially where the only consequence is the...
Source-derived case information.
- Citation
- [2014] KEHC 5762 (KLR)
- Parties
- Applicant: Samuel Ogodo Waga; Respondent: Fish Processors [2000] Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 184 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Review of Judgment, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ogodo Waga
Applicant
Fish Processors [2000] Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted against a negative order for costs.
- 2 Whether the applicant is entitled to a stay of execution pending appeal where only costs are at stake.
Ratio Decidendi
The court held that the application for stay of execution was misconceived because the order appealed against was negative in nature, involving only costs. Established legal principle dictates that a stay of execution is not available in respect of negative orders, especially where the only consequence is the payment of costs, since such costs are recoverable if the appeal is successful. The court therefore dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO.184 OF 2011
SAMUEL OGODO WAGA ….................................................APPLICANT
VERSUS
FISH PROCESSORS [2000] LIMITED....................................RESPONDENT
[Being an appeal from the ruling of R. B. N MALOBA – R.M. from the Chief Magistrate's Court at Kisumu
in CMCC No.257 of 2011. ]
**************
R U L I N G
The applicant has appealed to the Court of Appeal against the decision of this court which on 31/10/12 dismissed with costs his application under Order 45 of the Civil Procedure Rules for the review of the judgment dated 26/7/12. What is being appealed against is a negative order. Further, it is now trite that where what is sought to be stayed is the order for costs, the same cannot be granted as the appellant, if he succeeds in the appeal, would be refunded his costs. (FRANCIS KABAA .V. NANCY WAMBUI & ANOTHER, Civil Application No. NAI 298 OF 1996). The application is misconceived and is dismissed with costs.
Dated, signed and delivered this 13th March, 2014
A. O. MUCHELULE
J U D G E