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Court of AppealStruck OutCivil Application No. NAI. 281 of 1999 (102/99UR)· [1999] KECA 114 (KLR)

KISII FARMERS UNION LIMITED & 2 OTHERS vs ORIENTAL HARDWARE LTD [1999] KECA 114 (KLR)

Court of Appeal
7 October 1999
RKR.O. KwachPhilip Kiptoo TunoiP.K. TunoiALA.A. Lakha
147 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a stay of execution application because the High Court had made no decision capable of being appealed.

What this practically means

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Executive summary

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This is a short order of the Court of Appeal at Nairobi (Kwach, Tunoi and Lakha, JJ.A) dated 7 October 1999, disposing of an application for stay of execution filed by Kisii Farmers Union Limited and two others against Oriental Hardware Ltd. The application was brought in an intended appeal from a judgment of the High Court of Kenya at Kisii (Waweru, J) dated 27 September 1999 in H.C.C.C. No. 112 of 1994. The Court of Appeal did not engage in extended analysis. In a single-paragraph order, it held that the application was obviously incompetent because the learned Judge in the High Court had not made any decision whatsoever capable of giving rise to the application before it - that is, there was no decision or order below capable of execution or of founding an intended appeal. On that basis, the Court struck out the application with costs. The order was made at Nairobi and is signed by all three Judges of Appeal, indicating a unanimous decision of the bench with no separate or dissenting opinions. The judgment affirms the principle that a stay of execution in an intended appeal presupposes an existing decision of the lower court; absent such a decision, the Court of Appeal has nothing to stay and the application must fail. No authorities or statutory provisions are cited in the order, and the decision below was neither affirmed nor reversed - the Court simply declined to entertain the incompetent application.

Key legal issues

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01

Competence of an application for stay of execution in an intended appeal where no decision exists below

Holding

The application was incompetent and was struck out with costs.

Reasoning

The Court of Appeal held that a stay of execution presupposes a decision or order of the court below capable of execution and of being appealed. Since the learned Judge (Waweru, J) had made no decision whatsoever capable of giving rise to the application, there was nothing before the Court on which a stay could be founded. The application was therefore obviously incompetent and had to be struck out, with costs to the respondent.

p. 2

Legal principles established

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  • An application for stay of execution in an intended appeal can only be brought where there is a decision of the court below capable of being appealed against; where the judge has made no such decision, the application is incompetent and will be struck out.

Court orders

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  1. 1.The application for stay of execution is struck out with costs
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 112 of 1994
Jurisdiction invoked
Application for stay of execution in an intended appeal under the Court of Appeal's appellate jurisdiction (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KISII FARMERS UNION LIMITED & 2 OTHERS vs ORIENTAL HARDWARE LTD [1999] KECA 114 (KLR)", Case Analysis (1999). Civil Application No. NAI. 281 of 1999 (102/99UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/114/eng@1999-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.