[1998] KECA 155 (KLR)
The Court found that the applicant had not demonstrated that the property in the equipment had been transferred from the respondent company to himself, as he did not seriously deny the respondent's ownership. Consequently, the appeal on this issue was not arguable. The Court also noted that the applicant was using...
Source-derived case information.
- Citation
- [1998] KECA 155 (KLR)
- Parties
- Applicant: Shadrack Kitolo Kioko; Respondent: Eastern Computer Science Institute Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 62 of 1998
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Partial stay granted; application otherwise dismissed.
- Legal Topics
- Stay of Execution, Interlocutory Orders, Company Directors Duties, Ownership of Property
- 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
Shadrack Kitolo Kioko
Applicant
Eastern Computer Science Institute Ltd
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the High Court's orders pending appeal.
- 2 Whether the property in the disputed equipment had been transferred from the respondent to the applicant.
- 3 Whether restraining the applicant from running a rival company was proper.
Ratio Decidendi
The Court found that the applicant had not demonstrated that the property in the equipment had been transferred from the respondent company to himself, as he did not seriously deny the respondent's ownership. Consequently, the appeal on this issue was not arguable. The Court also noted that the applicant was using the equipment to run a rival company, but considered that the High Court's order restraining the applicant from running a rival company entirely may have been overly broad. The Court concluded that the applicant had not shown that his appeal would be rendered nugatory if the stay was not granted, particularly since the equipment did not belong to him. Therefore, the Court...
Court Disposition
Partial stay granted; application otherwise dismissed.
Orders
- A stay is granted only in respect to order 2 made by the High Court on 29th January, 1998.
- Costs of the application to abide the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, AKIWUMI & PALL, JJ.A.)
CIVIL APPLICATION NO. NAI. 62 OF 1998
BETWEEN
SHADRACK KITOLO KIOKO.........................A.N.D........APPLICANT
EASTERN COMPUTER SCIENCE INSTITUTE LTD..................RESPONDENT
(Being an application for stay of execution of the ruling and Order of the High Court of Kenya at Machakos by Hon. Mr. Justice J. W. Mwera dated 29th January, 1998 in H.C.C.C. NO. 206 OF 1997) *********
RULING OF THE COURT
The respondent sought interim orders against the applicant for the return of equipment of the respondent removed by the applicant who is a director of the respondent company and from running a rival business to that of the respondent. The applicant did not deny that the equipment belonged to the respondent, but alleged that he had paid for the equipment which was the property of the respondent. The learned judge granted the orders sought against which the applicant has now appealed and also seeks stay. We do not think that the property in the equipment has been transferred from the respondent to the applicant, indeed the applicant does not really deny this. To our mind, this makes the appeal on this issue not arguable. Furthermore, the equipment removed by the applicant is being used by the applicant to run a rival company. But we think that inspite of the intimate connection between the removed equipment and the rival company, the order of the learned judge in restraining the applicant from running the rival company at all may be wrong. We also do not think that the appeal of the applicant would be nugatory if his appeal is to succeed particularly whom the equipment removed by the applicant does not belong to him. In the result, we are not inclined to grant the order sought except with respect to the second order granted by the learned judge on 29th January, 1998. That is, we order a stay on order 2 made by the Judge.
The costs of this application to abide the appeal.
Dated and delivered this 31st day of March, 1998.
R.S.C. OMOLO ...............
JUDGE OF APPEAL
A. M. AKIWUMI ................
JUDGE OF APPEAL
G. S. PALL .................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR