[2004] KEHC 2273 (KLR)
The court found that the appeal had already been filed and that it was in the interest of justice to grant a stay of execution to prevent the appeal from being rendered nugatory. The court held that the applicant was entitled to seek a stay in the High Court even after abandoning a similar application in the lower...
Source-derived case information.
- Citation
- [2004] KEHC 2273 (KLR)
- Parties
- Appellant: United Insurance Co. Limited; Respondent: Fridah Kerubo Onyancha
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 263 of 2003
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Appeals Process, Advocate on Record, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
United Insurance Co. Limited
Appellant
Fridah Kerubo Onyancha
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the firm of Ocharo Otiso & Co. Advocates is properly on record for the appellant.
- 3 Whether filing a similar application in the lower court and abandoning it affects the applicant's right to seek stay in the High Court.
Ratio Decidendi
The court found that the appeal had already been filed and that it was in the interest of justice to grant a stay of execution to prevent the appeal from being rendered nugatory. The court held that the applicant was entitled to seek a stay in the High Court even after abandoning a similar application in the lower court, as this did not constitute an abuse of process. The court also determined that the change of advocates was proper since the appeal had not yet been heard and judgment entered, thus compliance with Order 3 Rule 9A was not required at this stage. The stay was granted on condition that the applicant deposits the whole decretal amount and taxed costs in a joint interest...
Court Disposition
application allowed with conditions
Orders
- Stay of execution of decree in Kisii CMCC 132 of 2000 granted until the appeal is disposed of.
- Applicant/appellant to deposit the whole decretal amount together with taxed costs in a joint interest earning account in the names of both counsels within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO.263 OF 2003
UNITED INSURANCE CO. LIMITED …………………… APPELLANT/APPLICANT
VERSUS
FRIDAH KERUBO ONYANCHA …………….……. RESPONDENT/RESPONDENT
RULING:
Applicant prays for stay of execution of the decree in Kisii CMCC 132 of 2000 pending the hearing of this appeal. It was submitted that having been dissatisfied with the judgment of the lower court he has filed an appeal which have high chances of success.
The application was opposed. First Mr. Lebu said the firm of Ocharo Otiso & Co. Advocates are not properly on record. Initially the firm of M/s Soire & Co. were appearing for the appellant. M/s Otiso & Co. did not comply with order 3 rule 9(1) CPR before coming on record.
Secondly Mr. Lebu submitted that the applicant/appellant had filed another similar application in the lower court which he abandoned after getting interim orders. His hands are there not clear.
I have considered the application. First this appeal has not been heard and judgment entered. There was therefore no need for the firm of Otiso & Co. Advocate to make an application under O.3 rule (1) CPR before coming on record in place of M/s Soire and Co Advocate.
As for the appellant having filed another application in the lower court that does not estopped him from filing a similar one in this court. He can chose to file either in the lower court or in the high court. He can abandon the one in the lower court and file another one. It is not an abuse of court’s process.
The appeal has already been filed. I feel it would be in interest of justice to stay the execution until the appeal is determined otherwise it may be rendered nugatory.
In the circumstances I allow the application and order that there be a stay of execution of decree in Kisii CMCC 132 of 2000 until the appeal is disposed off on condition that the applicant/appellant deposit the whole decretal amount together with taxed costs in a joint interest earning account in names of both counsels for the parties within the next 14 days. Failure to do so this application stands dismissed.
Dated 29th July 2004 at Kisii.
KABURU BAUNI
JUDGE
29/7/04
Mr. Otiso for applicant.
Mr. Ogari for Mr. Lebu for respondent.
KABURU BAUNI
JUDGE