KISII FARMERS UNION LIMITED & 2 OTHERS vs ORIENTAL HARDWARE LTD [1999] KECA 114 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a stay of execution application because the High Court had made no decision capable of being appealed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution was competent, given that the High Court Judge had made no decision capable of being the subject of an intended appeal
Key legal issues
#Competence of an application for stay of execution in an intended appeal where no decision exists below
The application was incompetent and was struck out with costs.
The Court of Appeal held that a stay of execution presupposes a decision or order of the court below capable of execution and of being appealed. Since the learned Judge (Waweru, J) had made no decision whatsoever capable of giving rise to the application, there was nothing before the Court on which a stay could be founded. The application was therefore obviously incompetent and had to be struck out, with costs to the respondent.
Legal principles established
#- An application for stay of execution in an intended appeal can only be brought where there is a decision of the court below capable of being appealed against; where the judge has made no such decision, the application is incompetent and will be struck out.
Court orders
#- 1.The application for stay of execution is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 112 of 1994
- Jurisdiction invoked
- Application for stay of execution in an intended appeal under the Court of Appeal's appellate jurisdiction (no specific provision cited in the judgment)
Relief refused
#Stay of execution pending the intended appeal
The application was incompetent because the High Court Judge had made no decision capable of giving rise to the application
Costs
The application is struck out with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This application is obviously incompetent. The learned Judge has not made any decision whatsoever capable of giving rise to the application before us. Consequently, we strike it out with costs.
Consequently, we strike it out with costs.
Issues in the judgment
#The judgment is a brief ex tempore order; it does not identify the specific rule or statutory provision under which the stay application was brought, and no appeal number or intended-appeal details beyond the High Court case are given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KISII FARMERS UNION LIMITED & 2 OTHERS vs ORIENTAL HARDWARE LTD [1999] KECA 114 (KLR)", Case Analysis (1999). Civil Application No. NAI. 281 of 1999 (102/99UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/114/eng@1999-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.