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Mombasa Cashewnuts Processor (K) Ltd & Awadh Saleh Said v. Nyari Investments (1988) Limited & Delphis Bank Limited

(2008) JELR 98967 (CA)

Court of Appeal  •  Civil Appli. Nai 235 of 2007 (UR 146/2007)  •  15 Feb 2008  •  Kenya

Erastus Mwaniki Githinji



Both Mr. Nyaoga and Mr. Nowrojee, the learned counsel for the applicants, Mombasa Cashewnuts Processor (K) Ltd (1st applicant) and Awadh Saleh Salim (2nd applicant) and the 1st Respondent, Nyari Investments (1988) Ltd., respectively, argued the motion before us as though the motion itself was the very appeal. The motion dated and lodged in the Court on 20th September, 2007 is one under Rule 5(2)(b) of the Court’s Rules, and it simply asks the Court:-

“---- to grant a stay of execution of the ruling and order of the Superior Court made on 30th July, 2007, pending the lodging, hearing and determination of an intended appeal against the said decision.”

We know, and its trite learning that in such an application, an applicant has to show to the Court two things before an order for stay can be granted and the two things an applicant is required to satisfy the Court on are:-

(i) that the appeal, or the intended appeal if one has not been lodged, is an arguable and not a friv…

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