Silvanus Osoro Onyiego v Alice Nyomenda Oeri t/a A.N. Oeri & Co. Advocates [2020] KECA 436 (KLR)

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 Noticeof Motion application dated 9th  January, 2020. He seeks inter alia, orders thatthis Court stays execution of the judgment of Cherere, Jdelivered on19thDecember, 2019pending the determination of an intended appeal as well as stayof 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 theapplicant sworn on the same date (9th  January, 2020). In his deposition, theapplicant deponed that he filed a Notice of Motion dated 26th  November, 2019seeking orders to vary, set aside or quash the Certificate of Taxation in KisumuHigh Court Misc. Application No. 55 of 2019.  The said Notice of Motion wasdismissed on 19th 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 Advocatesvide an affidavit dated5thJune, 2020. In heraffidavit, she deponed that there was no order issued by the High Court capableof being stayed and that in the event that the  intended appeal succeeds, she isable to refund any sums of money paid to her.

Suffice to state that the applicant’s motion dated 26th November, 2019 wasdismissed on 19th December, 2019. The effect of the dismissal is that there is noorder capable of being stayed. There is no positive and enforceable order to bestayed. See Western College of Arts and Applied Sciences vs. E.P. Oranga & 3others [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 ofStanley Kangethe Kinyanjui vs. Tony Ketter & 5 others  [2013] eKLRhave  notbeen 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 7thDay of August, 2020.

S. GATEMBU KAIRU, FCIArb.

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JUDGE OF APPEAL

A.K. MURGOR

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is a truecopy of the original.

Signed

DEPUTY REGISTRAR