[2020] KECA 436 (KLR)
The Court found that the dismissal of the applicant's motion by the High Court did not result in a positive or enforceable order that could be stayed. Without such an order, there is nothing for the Court of Appeal to stay. Furthermore, the applicant failed to demonstrate that the respondent would be unable to...
Source-derived case information.
- Citation
- [2020] KECA 436 (KLR)
- Parties
- Applicant: Silvanus Osoro Onyiego; Respondent: Alice Nyomenda Oeri t/a A.N. Oeri & Co. Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 2 of 2020
- Procedural Posture
- Civil Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AK Murgor, F Sichale
- Legal Topics
- Stay of Execution, Certificate of Taxation, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvanus Osoro Onyiego
Applicant
Alice Nyomenda Oeri t/a A.N. Oeri & Co. Advocates
Respondent
Procedural Posture
Civil Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether there is a positive and enforceable order capable of being stayed pending appeal.
- 2 Whether the applicant has satisfied the principles for grant of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules.
Ratio Decidendi
The Court found that the dismissal of the applicant's motion by the High Court did not result in a positive or enforceable order that could be stayed. Without such an order, there is nothing for the Court of Appeal to stay. Furthermore, the applicant failed to demonstrate that the respondent would be unable to refund any sums paid should the appeal succeed, as the respondent expressly stated her ability to do so. The applicant did not satisfy the twin principles required for the grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. Consequently, the application for stay was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed.
- The applicant shall pay the costs of the application to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
[CORAM: GATEMBU, MURGOR & SICHALE, JJA]
CIVIL APLICATION NO. 2 OF 2020
BETWEEN
SILVANUS OSORO ONYIEGO....................APPLICANT/APPELLANT
AND
ALICE NYOMENDA OERI
T/A A.N. OERI & CO. ADVOCATES................................ RESPONDENT
(Application under Rule 5 (2) (b) and Rule 47 of the Court of Appeal Rules)
RULING OF THE COURT
The applicant, Silvanus Osoro Onyiego has moved the Court vide a Noticeof Motion application dated 9th January, 2020. He seeks inter alia, orders thatthis Court stays execution of the judgment of Cherere, Jdelivered on19thDecember, 2019pending the determination of an intended appeal as well as stayof execution of the Certificate of Taxation issued in Kisumu High Court Misc.application No. 55 of 2019. The motion was supported by an affidavit of theapplicant sworn on the same date (9th January, 2020). In his deposition, theapplicant deponed that he filed a Notice of Motion dated 26th November, 2019seeking orders to vary, set aside or quash the Certificate of Taxation in KisumuHigh Court Misc. Application No. 55 of 2019. The said Notice of Motion wasdismissed on 19th December, 2019; that unless this Court grants an order of stay,his property is likely to be attached thus rendering his intended appeal nugatory.
The motion was opposed by the respondent, Alice Nyomenda Oeri t/a A.N. Oeri & Company Advocatesvide an affidavit dated5thJune, 2020. In heraffidavit, she deponed that there was no order issued by the High Court capableof being stayed and that in the event that the intended appeal succeeds, she isable to refund any sums of money paid to her.
Suffice to state that the applicant’s motion dated 26th November, 2019 wasdismissed on 19th December, 2019. The effect of the dismissal is that there is noorder capable of being stayed. There is no positive and enforceable order to bestayed. See Western College of Arts and Applied Sciences vs. E.P. Oranga & 3others [1976] eKLR.Further, it was not demonstrated to us that the respondent,is a woman of straw and not capable of refunding any sums of money paid to her.
She has deponed that she is able to do so in the event that the intended appeal is successful.
In our view, the twin principle as set out by this Court in the case ofStanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLRhave notbeen satisfied.
The upshot of the above is that we decline to grant a stay of execution pending the hearing and determination of the intended appeal. The application is accordingly dismissed with costs.
Dated and Delivered in Nairobi this 7thDay of August, 2020.
S. GATEMBU KAIRU, FCIArb.
.......................................................
JUDGE OF APPEAL
A.K. MURGOR
......................................................
JUDGE OF APPEAL
F. SICHALE
......................................................
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
Signed
DEPUTY REGISTRAR