Otieno (Suing on Behalf of the Estate of Solomon Ochieng (Deceased)) v Okumu & 2 others (Civil Application 92 of 2020) [2021] KECA 1028 (KLR) (29 January 2021) (Ruling)
- Court
- Court of Appeal
- Case number
- 1028
- Citation
- [2021] KECA 1028 (KLR)
- Decided
- 29 January 2021
The Court finds that the applicant has an arguable appeal and that the appeal is not frivolous. However, the Court does not find that the appeal, if successful, would be rendered nugatory in the absence of an order of stay of execution.
Facts
The applicant filed a suit against the respondents claiming orders of eviction and cancellation of a title deed. The suit was dismissed for want of prosecution, and the applicant appealed the dismissal. The applicant now seeks a stay of the execution of a decree for costs awarded to the 1st respondent.
Issues
- Whether the intended appeal is arguable
- Whether the appeal is not frivolous
- Whether the appeal, if successful, would be rendered nugatory in the absence of an order of stay of execution
Reasoning
The Court has often stated that an arguable ground of appeal is not one which must succeed but it should be one that is not frivolous. The orders appealed against are negative orders, and the Court has pronounced itself on staying of negative orders.
Outcome
The application for stay of execution of the ruling is dismissed.
Orders
- The application for stay of execution of the ruling is dismissed.
Authorities cited
Cases cited (3)
- Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] eKLR
- Trust Bank Limited & Ano. v Investech Bank Limited & 3 Others, Civil Application Nai. 258 of 1999 (unreported)
- Dennis Mogambi Mang’are v Attorney General & 3 Others, Civil Application No. Nai 265 of 2011 (UR 175/2011)
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