Cajetan Kerama Okemwa v Joseph Kerongo Orangi [2004] KEHC 735 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO.110 OF 2003

(From original Civil Suit No.58 of 2000 of CM’s Court at Kisii)

CAJETAN KERAMA OKEMWA ……………………………………. APPELLANT

VERSUS

JOSEPH KERONGO ORANGI …………………………………….. RESPONDENT.

RULING

The applicant seeks for stay of execution of the judgment and decree in KISII CM CC.NO.58 OF 2000 pending the hearing and determination of the appeal.

It was submitted that judgment was delivered on 16/5/03 and the applicant being dissatisfied promptly filed an appeal. If stay of execution is not granted the appeal will be rendered nugatory as the Respondent is not a man of any known means. Applicant offered to deposit title of his land as security.

Application was opposed. Mr. Kimanga submitted that this is the fourth application for stay. The others were dismissed. The applicant should therefore have appealed and not file another application.

I have considered the application, affidavits and submissions. It is clear from the proceedings that this is not the first application for stay. The first application was filed on 12th June 2003. It was seeking for stay of execution. That application was dismissed on 15th October 2003. Applicant thereafter filed another application dated 28/11/03 seeking the court to review and set aside the Order/Ruling made on 15/10/03. That application was heard on 11th May 2003. It was dismissed on 21st May 2003. Thereafter the applicant brought this application.

The court clearly gave reasons why it dismissed the first application for stay.

Thereafter an application to set that order aside was also rejected and reasons given.

I concur with Mr. Kimanga that the applicant, if he was not satisfied ought to have appealed against the ruling and not to file a similar application seeking for similar orders.

Court was not told that there are any new circumstances since the first application was dismissed.

In the circumstances the application is dismissed with costs.

KABURU BAUNI

JUDGE

17/11/04

Mr. Nyauntu H/B for Mr. Kimanga for the Respondent.

KABURU BAUNI

JUDGE

17/11/04