Eden Millers v Phylis Swali Wakhungu, Kasune Enterprise Limited & Andrew Omuhaka [2021] KEHC 684 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CIVIL APPEAL NO. 53 OF 2019

(An appeal from the judgment of Hon. FM Nyakundi, Senior Resident Magistrate, in Mumias SPMCCC No. 288 of 2012, delivered on 29th April 2019)

EDEN MILLERS .................................................APPELLANT

VERSUS

PHYLIS SWALI WAKHUNGU.................1ST RESPONDENT

KASUNE ENTERPRISE LIMITED........2ND RESPONDENT

ANDREW OMUHAKA..............................3RD RESPONDENT

RULING

1. What I am called upon to determine is an application dated 18th September 2019, for stay of execution pending appeal.

2. The impugned judgment was delivered on 29th April 2019, and the memorandum of appeal herein was lodged on 28th May 2019, within the thirty days allowed in law.

3. The original trial records of the trial court have been availed, complete with three copies of the proceedings and judgment duly typed, and the judgment certified. For all practical purposes the stage is set for the hearing of the appeal.

4. I believe justice of the situation favours status quo being maintained, to facilitate the hearing and disposal of the appeal, for an aggrieved party is entitled to a second opinion from an appellate court.

5. Consequently, I do hereby allow the application dated 18th September 2019, on the terms proposed. The stay order shall be on condition that the appellant deposits the entire judgment in court within the next thirty days of the date of this order.

6. The appellant shall file record of appeal within thirty days, after which the Deputy Registrar shall cause the appeal to be listed for directions on disposal.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER, 2021

W. MUSYOKA

JUDGE

In the presence of:-

Erick Zalo – Court Assistant

Mr. Mutoka for Mr. Billy Amendi for Appellant