Case ID:162628

Silvanus Osoro Onyiego v Alice Nyomenda Oeri

t/a A.N. Oeri & Co. Advocates [2020] eKLR

Case Metadata

Case Number:

Civil Aplication 2 of 2020

Parties:

Silvanus Osoro Onyiego v Alice Nyomenda Oeri t/a A.N. Oeri & Co. Advocates

Date Delivered:

07 Aug 2020

Case Class:

Civil

Court:

Court of Appeal at Kisumu

Case Action:

Ruling

Judge(s):

Fatuma sichale, Agnes Kalekye Murgor, Stephen Gatembu Kairu

Citation:

Silvanus Osoro Onyiego v Alice Nyomenda Oeri

t/a A.N. Oeri & Co. Advocates [2020] eKLR

Court Division:

Civil

County:

Kisumu

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT KISUMU

[CORAM: GATEMBU, MURGOR & SICHALE, JJA]

CIVIL APLICATION NO. 2 OF 2020

BETWEEN

SILVANUS OSORO ONYIEGO....................APPLICANT/APPELLANT

AND

ALICE NYOMENDA OERI

T/A A.N. OERI & CO. ADVOCATES................................ RESPONDENT

(Application under Rule 5 (2) (b) and Rule 47 of the Court of Appeal Rules)

RULING OF THE COURT

The applicant,

Silvanus Osoro Onyiego

has moved the Court vide a Notice

of Motion application dated

9

th

January, 2020

. He seeks

inter alia

, orders that

this Court stays execution of the judgment of

Cherere, J

delivered on

19

th

December, 2019

pending the determination of an intended appeal as well as stay

of execution of the Certificate of Taxation issued in Kisumu High Court Misc.

application No. 55 of 2019. The motion was supported by an affidavit of the

applicant sworn on the same date (

9

th

January, 2020)

. In his deposition, the

applicant deponed that he filed a Notice of Motion dated

26

th

November, 2019

seeking orders to vary, set aside or quash the Certificate of Taxation in Kisumu

High Court Misc. Application No. 55 of 2019. The said Notice of Motion was

dismissed on

19

th

December, 2019

; that unless this Court grants an order of stay,

his property is likely to be attached thus rendering his intended appeal nugatory.

The motion was opposed by the respondent,

Alice Nyomenda Oeri

t/a

A.N. Oeri & Company Advocates

vide an affidavit dated

5

th

June, 2020

. In her

affidavit, she deponed that there was no order issued by the High Court capable

of being stayed and that in the event that the intended appeal succeeds, she is

able to refund any sums of money paid to her.

Suffice to state that the applicant’s motion dated

26

th

November, 2019

was

dismissed on

19

th

December, 2019

. The effect of the dismissal is that there is no

order capable of being stayed. There is no positive and enforceable order to be

stayed. See

Western College of Arts and Applied Sciences vs. E.P. Oranga & 3

others [1976] eKLR.

Further, it was not demonstrated to us that the respondent,

is a woman of straw and not capable of refunding any sums of money paid to her.

She has deponed that she is able to do so in the event that the intended appeal is successful.

In our view, the twin principle as set out by this Court in the case of

Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] eKLR

have not

been satisfied.

The upshot of the above is that we decline to grant a stay of execution pending the hearing and determination of the intended appeal. The application is accordingly dismissed with costs.

Dated and Delivered in Nairobi this 7

th

Day of August, 2020.

S. GATEMBU KAIRU, FCIArb.

.......................................................

JUDGE OF APPEAL

A.K. MURGOR

......................................................

JUDGE OF APPEAL

F. SICHALE

......................................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR