[2016] KEHC 757 (KLR)
The court found that the issues raised in the application were weighty and of significant public interest, particularly as they concerned public resources. The court determined that both parties would benefit from further adjudication at the appellate level. The court did not find that the respondents would suffer...
Source-derived case information.
- Citation
- [2016] KEHC 757 (KLR)
- Parties
- Applicant: Timothy Otuya Afumbwa; Applicant: Fred Maruti Murunga; Respondent: The County Government of Trans Nzoia; Respondent: Ratilal Gosar Dodhia; Respondent: Vipul Kantil Shah; Respondent: Avir Kanti Shah
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2015
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application for stay of execution granted with conditions
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Appeals Process, Public Interest Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Otuya Afumbwa
Applicant
Fred Maruti Murunga
Applicant
The County Government of Trans Nzoia
Respondent
Ratilal Gosar Dodhia
Respondent
Vipul Kantil Shah
Respondent
Avir Kanti Shah
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and consequential orders pending appeal.
- 2 Whether the application for stay was made without undue delay.
- 3 Whether granting stay would prejudice the respondents or the public interest.
Ratio Decidendi
The court found that the issues raised in the application were weighty and of significant public interest, particularly as they concerned public resources. The court determined that both parties would benefit from further adjudication at the appellate level. The court did not find that the respondents would suffer irreparable injury if stay was granted, as they would still have an opportunity to pursue their case before the Court of Appeal. To ensure fairness and preserve the subject matter, the court exercised its discretion to grant a stay of the decree and all consequential orders, subject to the applicant processing the appeal within 90 days. Failure to comply with this timeline would...
Court Disposition
application for stay of execution granted with conditions
Orders
- There be stay of the decree dated 23/6/2016 and all consequential orders.
- The applicant to process the appeal within 90 days from the date of the ruling.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
PETITION CASE NO. 4 OF 2015
TIMOTHY OTUYA AFUMBWA .......................................1ST PETITIONER
FRED MARUTI MURUNGA …...................................... 2ND PETITIONER
VERSUS
THE COUNTY GOVERNMENT OF TRANS NZOIA ..1ST RESPONDENT
RATILAL GOSAR DODHIA …...................................2ND RESPONDENT
VIPUL KANTIL SHAH …...........................................3RD RESPONDENT
AVIR KANTI SHAH …..............................................4TH RESPONDENT
R U L I N G
By its application dated 17/10/2016 the 1st respondent/appellant prays that there be stay of further proceedings in this petition and stay of execution of the judgement delivered on 23/6/2016 and any other subsequent orders pending the hearing and determination of the appeal at the court of appeal.
The application is supported by the affidavit Pius Munialo dated 17/10/2016 together with the attached annextures.
Substantially all that the applicant is asking is for a second chance at the Court of Appeal. If the stay is not granted then they stand to suffer loss and damages and the hospital complex together with the investments already in place stand to be wasted.
The respondent by the replying affidavit of Timothy Otunga Afubwa has opposed the same arguing that the same is meant to delay the first conclusion of this matter and it had been made inordinately. They argue that a mere notice of Appeal prima facie does not meant that there is such an appeal but a mere intention.
Having perused the application herein and taking into consideration the totality of the issues herein I do find that the same are weighty. The issues are of such great public interest and I find that it would be in order for the decision of this court to be subjected to further scruitunity. At the heart of this matter are public resources. Both the applicants as well as the respondents will greatly benefit if a further adjudication is undertaken.
Against this backdrop I do not see what injury the respondents stand to suffer. They brought this matter on their behalf and that of the constituence of Trans Nzoia County. They still have a chance at the Court of Appeal. Moreover the applicant has a perpetual life and hopefully the Court of Appeal will determine the same speedily.
In the premises and to ensure fairness on both sides I shall allow the application as follows;
(i) There be stay of the decree herein dated 23/6/2016 and all its consequential orders.
(ii) The applicant to process this appeal within 90 days from the date herein.
(iii) Should order (ii) above not complied with then the stay granted in (i) above shall stand discharged automatically.
(iv) Each party to bear their respective costs.
Delivered this 5th day of December 2016.
____________________
H.K. CHEMITEI
JUDGE
In the presence of;
Prof. Sifuna for 1st Respondent
Kisa for the 2nd – 4th Respondents
Shiveka for the Petition
Kirong – Court Assistant