Description
Stay of execution – commencement of an appeal process does not bar execution proceedings
- The holding in Ahmed Mbaraka v Mwananchi Engineering Co. Ltd Civil Application No. 229/2014 which barred execution once the appeal process has been initiated was an orbiter dictum. A party cannot be blamed for relying on such decision. (p. 11).
- Unless stay of execution is sought and granted by the Court, execution at the High Court will proceed. (p. 12). In other words, an appeal does not bar execution proceedings.
- An application for an extension of time to seek stay of execution – delay was caused by reliance on the legal position in Ahmed Mbaraka v Mwananchi Engineering Co. Ltd that an appeal bars execution. However, later that position was found to be inapplicable hence the applicant filed this application. That change of legal position in a case law was held as good cause for delay. (pp. 11 – 12).
- Extent of delay – the application for extension of time was filed two and a half months after change of that legal position. It was held that the applicant had acted promptly. (p. 12).
- By implication, this decision vacates the position in Ahmed Mbaraka v Mwananchi Engineering Co. Ltd about whether commencement of an appeal process automatically bars an execution.
