[1999] KECA 47 (KLR)
The Court found that, even assuming the intended appeal was arguable, the applicants failed to demonstrate that the appeal would be rendered nugatory if a stay was not granted. The Court was not persuaded that the absence of a stay would irreparably prejudice the applicants or render the appeal futile. As both...
Source-derived case information.
- Citation
- [1999] KECA 47 (KLR)
- Parties
- Applicant: Stephen Kimondo Karuku; Applicant: Wanjiku Njoroge; Applicant: Estate of the Late Monica Wamaitha Kihara; Respondent: Cecilia W. Kihara
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 154 of 1999
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Appeals, Interlocutory Applications
- 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
Stephen Kimondo Karuku
Applicant
Wanjiku Njoroge
Applicant
Estate of the Late Monica Wamaitha Kihara
Applicant
Cecilia W. Kihara
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether the intended appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that, even assuming the intended appeal was arguable, the applicants failed to demonstrate that the appeal would be rendered nugatory if a stay was not granted. The Court was not persuaded that the absence of a stay would irreparably prejudice the applicants or render the appeal futile. As both conditions for the grant of a stay under Rule 5(2)(b) must be satisfied, and the second limb was not met, the application for stay of execution was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA CORAM: CHESONI CJ, LAKHA & OWUOR JJ.A CIVIL APPLICATION NO. NAI. 154 OF 1999 (56/99 UR)
BETWEEN STEPHEN KIMONDO KARUKU............................1ST ATEPRPELSIICAA NT WANJIKU NJOROGE...........................2ND ATHPEP LIECSTAANTTE OF THE LATE MONICA WAMAITHA KIHARA............................3RDAPPLICANT AND CECILIA W. KIHARA.................................RESPONDENT
(An application for stay of execution of the ruling and order of the High Court of Kenya at Mombasa (Hon. Mr. Justice Waki) dated 4th February, 1999
RULING OF THE COURT
This is an application for a stay of execution of the Ruling and Order of the superior court (Waki J) given on the 4th of February, 1999 under Rule 5(2)(b) of the Rules of this Court. The conditions on which such a stay is granted are now only too well known. There are two conditions which must be satisfied; first the intended appeal must be an arguable appeal and secondly if a stay is not granted the intended appeal if successful would be rendered nugatory.
Having heard Mr Gathuku in support of the application and assuming, without deciding that the intended appeal is not frivolous we are not persuaded that the same would be rendered nugatory if a stay is not granted. That being the case, this application for stay cannot succeed. Accordingly the application is dismissed, with costs.
Dated and delivered at Mombasa this 22rd day of July,
1999. Z.R. CHESONI ..................
CHIEF JUSTICE
A.A. LAKHA ..................
JUDGE OF APPEAL
E. OWUOR ..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR