PETER MAINGI V. EDWARD MALELU LUA, STANLEY KYOVO LUA, KYALO LUA & WAMBUA LUA

RULING OF THE COURT

The applicant, Peter Mwangi, in a notice of motion dated 30th September 2004, brought under rule 5(2) (b) of the Court of Appeal Rules, is seeking an order that a stay of execution of the decree in High Court Civil Suit No. 63 of 2002 issued on 11^th March 2004 be granted till the appeal he intends to file is heard and determined. The grounds for seeking the order are mainly two and these are first, that the intended appeal is not only arguable but raises substantial and “diguable” points of both law and fact, and secondly, that if the decree already obtained is executed prior to the hearing of the intended appeal, the results of the appeal, if favourable to the applicant, will be rendered nugatory.

The respondents oppose the application and the second respondent, Stanley Kyovo Lua, swore a replying affidavit on his own behalf in which, in a summary he states that the applicant’s intended appeal has no merit and that the success of the intended appeal will not be rend…