[2001] KEHC 604 (KLR)
The court found that the applicants had failed to satisfy the requirements of Order XLI Rule 4(2) of the Civil Procedure Rules for the grant of a stay of execution. The court further held that the grounds advanced by the applicants were more appropriately addressed in an application before the Court of Appeal under...
Source-derived case information.
- Citation
- [2001] KEHC 604 (KLR)
- Parties
- Plaintiff: Washington O. Okeyo; Defendant: Kenya Breweries Limited; Defendant: Tembo Co-operative Savings & Credit Society
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1787 of ??
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Stay of Execution, Appeals, Civil Procedure Rules, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Washington O. Okeyo
Plaintiff
Kenya Breweries Limited
Defendant
Tembo Co-operative Savings & Credit Society
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants satisfied the requirements for grant of stay of execution under Order XLI Rule 4 of the Civil Procedure Rules.
- 2 Whether the High Court is the appropriate forum for the application for stay pending appeal after an appeal has been filed.
Ratio Decidendi
The court found that the applicants had failed to satisfy the requirements of Order XLI Rule 4(2) of the Civil Procedure Rules for the grant of a stay of execution. The court further held that the grounds advanced by the applicants were more appropriately addressed in an application before the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, rather than before the High Court. Consequently, the application for stay of execution was dismissed with costs to the respondents.
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
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1787 OF 2000
WASHINGTON O. OKEYO ………………………………. PLAINTIFF VERSUS KENYA BREWERIES LIMITED ………………….. 1ST DEFENDANT TEMBO CO-OPERATIVE SAVINGS &CREDIT SOCIETY …………………………………. 2ND DEFENDANT
RULING
This is an application for stay of execution of an order made by this court on 21. 11. 2000 pending appeal. The application has been made under O. XLI Rule 4 of the Civil Procedure Rules and is supported by an affidavit sworn by Joseph Ogada, the Chairman of the 2nd defendant. When the ruling dated 21. 11. 2000 was made, the applicants applied for and were granted a 30 days stay of executions of the order pending the filing of an appeal to the Court of Appeal. It is necessary to observe that the stay was granted despite my absolute conviction that the applicants, especially the 2nd one, had acted quite illegally and in granting the stay, I was in effect perpetuating an illegal act.
It has now been stated on behalf of the defendants that an appeal (Civil Appeal No. 332 of 2000) has been duly filed in the Court of Appeal. However, instead of making an application in the Court of Appeal for stay of execution pending the hearing and determination of that appeal, the defendants have chosen to come back to this court for another order of stay of execution on grounds (see grounds (v) and (vi) stated in the Notice of Motion dated 20. 12. 2000 which clearly do not fall within O. XLI Rule 4 but are more germane applications under Rule 5(2) (b) of the Court of Appeal Rules.
It is my view that no attempt has been made by the applicants to satisfy the requirements of O. XLI Rule 4 (2) and clearly this application ought not to be granted. The application is for those reasons dismissed with costs.
Dated at Nairobi this 26th day of January, 2001.
T. MBALUTO JUDGE