[2012] KEHC 3678 (KLR)
The court found that the appellant failed to file and serve the record of appeal and did not attend the scheduled hearing, indicating a lack of interest in pursuing the appeal. The appellant's continued enjoyment of stay orders was unjustified in the circumstances. The court therefore allowed the application, lifted...
Source-derived case information.
- Citation
- [2012] KEHC 3678 (KLR)
- Parties
- Appellant: West Kenya Sugar Co. Ltd; Respondent: Leonard Muyuka Shimwenyi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application to Lift Stay, Release Deposit, and Dismiss Appeal
- Outcome
- Application allowed. Stay orders lifted. Security released to respondent. Appeal dismissed with costs.
- Legal Topics
- Stay of Execution, Dismissal for Non Prosecution, Release of Security, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
West Kenya Sugar Co. Ltd
Appellant
Leonard Muyuka Shimwenyi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Lift Stay, Release Deposit, and Dismiss Appeal
Legal Issues
- 1 Whether the stay orders previously granted should be lifted due to the appellant's non-compliance and lack of prosecution of the appeal.
- 2 Whether the monies deposited in court as security should be released to the respondent.
- 3 Whether the appeal should be dismissed for want of prosecution.
Ratio Decidendi
The court found that the appellant failed to file and serve the record of appeal and did not attend the scheduled hearing, indicating a lack of interest in pursuing the appeal. The appellant's continued enjoyment of stay orders was unjustified in the circumstances. The court therefore allowed the application, lifted the stay orders, ordered the release of the deposited security to the respondent, and dismissed the appeal with costs.
Court Disposition
Application allowed. Stay orders lifted. Security released to respondent. Appeal dismissed with costs.
Orders
- The stay orders granted on 22/6/2011 are lifted.
- The monies deposited in court as per the order of 22nd June, 2011 shall be released to the respondent's advocates forthwith.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Appeal 33 of 2011
WEST KENYA SUGAR CO. LTD................................................................................................................APPELLANT
VERSUS
LEONARD MUYUKA SHIMWENYI.........................................................................................................RESPONDENT
R U L I N G
The application by way of Notice of Motion dated 8th November, 2011 seeks the following orders:-
1. That the stay Orders granted on 22/6/2011 of temporary stay granted be lifted due to the defendant’s disobedience and contempt of the orders of 4th July, 201.
2. That the monies deposited in court as per the order of 22nd June, 2011 be released to the respondent’s advocates forthwith.
3. That the appeal be dismissed with costs.
4. That costs of the application be provided for.
The application is supported by the affidavit of Leonard Shinwenyi sworn on 8th November 2011. The applicant’s case is that he obtained judgment in Kakamega CMCC No. 158/2007 on the 4th day of March 2011. The appellant appealed against the said judgment and obtained orders of stay of execution on 24. 5.11. That the said orders lapsed but on 22. 6.11 the appellant obtained stay orders upon the deposit of Kshs.250,000/= as security.
Thereafter on 4th July, 2011 the court gave orders admitting the appeal to hearing. The record of Appeal was to be filed and served within 14 days and hearing of the appeal set down for hearing on 27. 10. 11. That on 27. 10. 11 the appellant did not attend court to prosecute the appeal. The applicant saw the appellant’s non attendance as a demonstration of lack of interest in the appeal. The applicant applied for the dismissal of the appeal with costs and that the orders of stay be lifted and the Kshs.280,000/= deposited be released to the applicant.
The appellant though duly served did not attend court on 20. 2.12 when the application proceeded to hearing. The application proceeded exparte. No papers were filed by the appellants in opposition to the application.
The history of this appeal reflects lack of diligence on the respondent’s part. The respondent was granted a temporary stay on 24. 5.2011 and the application for stay fixed for hearing inter-partes on 13. 6.2011. It seems that nothing transpired on 13. 6.2011. On 15. 6.2011 the application was fixed for hearing on 27. 6.11. On 22. 6.11 at the instance of the applicant, the stay orders were once again issued by the court on condition that the respondent deposited a sum of Kshs.250,000/= in court. Thereafter on 4. 7.11 the appeal was fixed for hearing on 27. 10. 11. No record of appeal was filed and served and the appellant did not attend court. It appears that the appellant has no interest in pursuing the appeal. The appellant should therefore not be allowed to continue enjoying the stay orders.
The application has merits and is allowed with costs.
Delivered, dated and signed at Kakamega this 12th day of June., 2012.
B. THURANIRA JADEN
J U D G E