Augustine Barasa Khisa v Lazaro Namasake & another [2017] KEELC 783 (KLR)
The bottom line
#The High Court in Kitale refused to pause execution of a decree because the applicant showed neither an arguable appeal nor that the appeal would be rendered pointless.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The appeal was not arguable; the applicant's plea that he was wrongly enjoined contradicted his own joint defence which acknowledged and justified his role in the forceful burial
The court examined the plaint and joint defence. The defence acknowledged the applicant's role in the forceful burial, making his claim of no interest in the subject matter inconsistent with his pleading. Additionally, no memorandum of appeal was annexed, so the gist of the appeal could only be gleaned from bare statements. Even a stranger may be liable for trespass to land.
Whether anything remained to be stayed
Nothing remained to stay; the body forming the subject of the decree had been exhumed and reburied in a public cemetery on 27/9/2016
The respondent's uncontroverted evidence showed the decree had been substantially executed before the application was filed. The only outstanding item was costs, which had not been taxed, and which the respondent submitted could be refunded or executed against the 1st defendant, who was not party to the appeal.
Whether security requirement offends Article 48 (access to justice)
The court did not need to determine this submission as the application failed on the primary grounds
The applicant, relying on Kenya Bus Services Ltd v Minister for Transport, argued that requiring security under the Government Proceedings Act framework impeded access to justice contrary to Article 48. The court did not engage with this argument, dismissing the application instead for failure to establish arguability and nugatory-ness.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate, simultaneously, that the appeal is arguable and that it would be rendered nugatory if stay is refused
- Where the subject matter of a decree has been overtaken by events, there is nothing capable of being stayed
Court orders
#- 1.The application dated 6/2/2017 is dismissed with costs
- Jurisdiction invoked
- Order 40 Rule 6(1) of the Civil Procedure Rules and Sections 1A, 1B, 3, 3(a) and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Augustine Barasa Khisa v Lazaro Namasake & another [2017] KEELC 783 (KLR)", Case Analysis (2017). Civil Appeal No. 17 of 2017 (Miscellaneous Application dated 6/2/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/783/eng@2017-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.