Onchwati v Kenya Oil Co. Ltd & another (Civil Application E243 of 2021) [2022] KECA 127 (KLR) (18 February 2022) (Ruling)

Facts

The applicant, Gideon Moses Onchwati, is aggrieved by the Ruling and orders of the High Court Civil Division dated 21st May, 2021, which allowed the 1st respondent’s Kenya Oil Company Ltd’s application and ordered restitution of Kshs. 16,129,272 paid to him by the 1st respondent, with interest at 12% p.a from 15th May 2017 until the date of full payment within 60 days from the date of the order, and in default, the 1st respondent be at liberty to execute the order of restitution for recovery of the amount.

Issues

1. Whether the applicant's appeal is arguable due to the learned judge's failure to consider section 75(1) of the Civil Procedure Act and order 43 rule (1) of the Civil Procedure rules.
2. Whether the intended appeal would be rendered nugatory given the 1st respondent's payment of the ordered sums after execution by the applicant.

Reasoning

The court considered that the applicant failed to satisfy the twin conditions precedent for granting of an order under rule 5(2) (b) of this Court's rules. The 1st respondent had already paid the ordered sums after execution by the applicant, and the intended appeal would not render the sums to be returned to the 1st respondent nugatory.

Outcome

The application for stay of execution of the Ruling and orders of the High Court Civil Division is dismissed.

Authorities cited