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High CourtDismissedKakamega High Court Civil Appeal arising from Kakamega CMCCC No. 319 of 2018; Motion dated 4th July 2019

Motion dated 4th July 2019 for stay of execution pending appeal (Kakamega High Court Civil Appeal from Kakamega CMCCC No. 319 of 2018)

High Court of Kenya
30 April 2020
WMW. Musyoka
531 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To stop a court order from being enforced, you must provide clear copies of the original judgment and decree.

What this practically means

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Executive summary

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The appellant moved the High Court at Kakamega by a Motion dated 4th July 2019 seeking stay of execution of a judgment allegedly delivered on 19th March 2019 and a decree issued on 9th April 2019 in Kakamega CMCCC No. 319 of 2018, pending an appeal lodged by memorandum dated 5th July 2019. W. Musyoka J observed that although the application was pegged on the judgment and decree, copies of neither were attached; the only exhibits were the warrants of attachment, the court broker's proclamation and fee note, and the trial court record was also unavailable. The court held that the judgment and decree are the foundation of both the appeal and the Motion and must be demonstrated to exist before the court takes any further step. The attached documents were derivative and merely invited the court to presume or speculate that the judgment and decree existed. Since a court acts on certainty, not presumption or speculation, the judge found the application not properly founded and declined to consider it on its merits. The application was dismissed with costs on 30th April 2020. The ruling was delivered online pursuant to COVID-19 directions, with the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules, the court relying on Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act.

Key legal issues

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Whether a stay of execution application can be determined on its merits where the judgment and decree sought to be stayed are not exhibited

Holding

The application was dismissed as not properly founded; warrants, proclamation and fee note are derivative documents that do not prove the existence of the judgment or decree

Reasoning

The court held that the judgment and decree are the foundation of both the appeal and the Motion, and must be demonstrated to exist before any further step. The attached documents (warrants, proclamation, fee note) are themselves founded on the unexhibited judgment and decree and leave only room for speculation. Without certainty, the court could not consider the merits.

p. 2

Legal principles established

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  • A court acts on certainty, not presumption or speculation; an application premised on a judgment and decree must exhibit copies of those processes before the court can act on it

Court orders

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  1. 1.Dismissal of the application dated 4th July 2019
  2. 2.Costs of the application to the respondent
On appeal from
Kakamega Chief Magistrate's Court (CMCCC)
319 of 2018
Jurisdiction invoked
Appellate/stay jurisdiction under the Civil Procedure Act, Cap 21 (Section 18 cited on delivery mode); appeal from subordinate court

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, "Motion dated 4th July 2019 for stay of execution pending appeal (Kakamega High Court Civil Appeal from Kakamega CMCCC No. 319 of 2018)", Case Analysis (2020). Kakamega High Court Civil Appeal arising from Kakamega CMCCC No. 319 of 2018; Motion dated 4th July 2019. Source:

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