[2001] KECA 220 (KLR)
The Court found that the applicant failed to demonstrate that the intended appeal would be rendered nugatory if a stay of proceedings was not granted. The assurance by the applicant's counsel that they were ready to proceed with the intended appeal, combined with the fact that the hearing was scheduled for...
Source-derived case information.
- Citation
- [2001] KECA 220 (KLR)
- Parties
- Applicant: Spares and Industries Limited; Respondent: Fina Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 64 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Proceedings Pending Intended Appeal
- Outcome
- application dismissed with costs
- Judges
- E Owuor
- Legal Topics
- Stay of Execution, Appeals Process, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Spares and Industries Limited
Applicant
Fina Bank Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Proceedings Pending Intended Appeal
Legal Issues
- 1 Whether the applicant has demonstrated that the intended appeal is arguable and would be rendered nugatory if a stay is not granted.
- 2 Whether the applicant is entitled to a stay of proceedings pending the hearing and determination of the intended appeal.
Ratio Decidendi
The Court found that the applicant failed to demonstrate that the intended appeal would be rendered nugatory if a stay of proceedings was not granted. The assurance by the applicant's counsel that they were ready to proceed with the intended appeal, combined with the fact that the hearing was scheduled for September, provided sufficient time for the applicant to prosecute the appeal. Consequently, the Court held that the requirements for granting a stay under Rule 5(2)(b) were not met and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: LAKHA, BOSIRE & OWUOR, JJ.A)
CIVIL APPLICATION NO. NAI. 64 OF 2001 (37/2001 UR)
BETWEEN
SPARES AND INDUSTRIES LIMITED ...........................APPLICANT
AND
FINA BANK LIMITED ................................................RESPONDENT
(Application for stay of execution pending the lodging,
hearing and determination of an intended appeal from
the Order of the High Court of Kenya at Nairobi (Mr.
Justice Khamoni) dated 26th February, 2001
in
H.C.C.C NO. 2106 OF 1999) ***************
RULING OF THE COURT
This is the plaintiff's application brought under rule 5 (2) (b) of the Rules of this Court seeking an order that:-
"There be a stay of proceedings/hearing of the High Court Civil Suit Number 2106 of 1999 pending the hearing and determination of the intended appeal".
The intended appeal is from the decision of the superior court (Khamoni, J.) given on 26th February, 2001. The facts of the case have been sufficiently set out in Civil Appeal No. 51 of 2000 and need not be repeated in this application. The decision of the superior court from which it is now intended to appeal merely dismissed the plaintiff's application for leave to join two other parties as defendants and to amend its plaint in order to plead particulars of its losses and damages arising from alleged mismanagement of the applicant's affairs during the one year period of receivership. The hearing of the case has already been set down in September this year.
The principles upon which this Court grants a stay are now firmly established. They require that the applicant should show that he had an arguable appeal and the same would be rendered nugatory if the stay sought in the application is withhWeel d.have carefully considered the submissions made to us by counsel for both parties and we say without much hesitation that we are not persuaded that the intended appeal would indeed be rendered nugatory if a stay is not granted. Moreso, after we had been assured by Mr. Wagara counsel for the applicant that he is now ready to mount the intended appeal and the hearing of the case we are called upon to stay, has been fixed in September, 2001. In our view this is more than sufficient time for the applicant to prosecute its appeal.
Having said that, it becomes unnecessary for us to express any view as to whether the intended appeal is arguable. For the above reason, the application fails and is dismissed with costs.
Dated and delivered at Nairobi this 30th day of March, 2001.
A.A. LAKHA
............................
JUDGE OF APPEAL
S.E.O BOSIRE
.................................
JUDGE OF APPEAL
E. OWUOR
................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR