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West Kenya Sugar Company Limited v. Kenya Sugar Board & Butali Sugar Mills Limited

(2012) JELR 94844 (CA)

Court of Appeal  •  Civil Application Nai 298 of 2010  •  17 Feb 2012  •  Kenya

Coram
Emmanuel Okello O'Kubasu, Daniel Kennedy Sultani Aganyanya, Philip Nyamu Waki

Judgement

RULING OF THE COURT

Although the record of the motion before us runs into 12 volumes of documents, affidavits and authorities, and the submissions of counsel on all sides were intensive and extensive, it is really a short matter at this stage. The motion seeks an order under rule 5 (2) (b) of the Rules of this Court for an order: -

“2. THAT there be a stay of execution of the ruling and order of the superior court at Kisumu in Judicial Review Case No. 17 of 2010 dated the 30th day of November, 2010 until the applicant’s intended appeal is lodged, heard and determined.”

The guiding principles in considering such application are now well settled and learned counsel on all sides articulated them admirably. The onus is on the applicant to show, not only that the intended appeal is not frivolous or is arguable, even on a solitary ground, but also that if the order sought is not granted, the success of the intended appeal would be rendered nugatory. The court is also under a statutory duty spe…

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