[1998] KEHC 241 (KLR)
The court found that the defendants failed to demonstrate what substantial loss would result if the stay was not granted, as required by Order 41 Rule 4(2) of the Civil Procedure Rules. The mere assertion that proceedings would be rendered nugatory if the appeal succeeds was insufficient without tangible evidence....
Source-derived case information.
- Citation
- [1998] KEHC 241 (KLR)
- Parties
- Plaintiff: Air Al-Faray Ltd; Defendant: Raytheon Aircraft Credit Corporation & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1611 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Proceedings, Substantial Loss, Security for Stay, Appeals, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Air Al-Faray Ltd
Plaintiff
Raytheon Aircraft Credit Corporation & Another
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the defendants have satisfied the conditions for grant of stay of proceedings pending appeal under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether substantial loss may result to the defendants if stay is not granted.
- 3 Whether provision of security is necessary for the grant of stay.
Ratio Decidendi
The court found that the defendants failed to demonstrate what substantial loss would result if the stay was not granted, as required by Order 41 Rule 4(2) of the Civil Procedure Rules. The mere assertion that proceedings would be rendered nugatory if the appeal succeeds was insufficient without tangible evidence. Furthermore, the defendants did not offer any security, such as the return of the aircraft, which could have supported their application. As a result, the court held that the defendants had not satisfied the legal requirements for the grant of a stay of proceedings pending appeal and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 1611 OF 1998
AIR AL-FARAY LTD........................................................PLAINTIFF
VERSUS
RAYTHEON AIRCRAFT CREDIT
CORPORATION & ANOTHER......................................DEFENDANT
R U L I N G
This is an application by way of Notice of Motion under Order 41 Rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for an order that there be a stay of any further proceedings in this suit pending the hearing and determination of the intended appeal from the order and ruling of the court delivered on 8th October, 1998.
This court has found that it has jurisdiction to hear and determine this suit. That is the finding the defendant has appealed form. A notice of appeal has been filed and so the appeal is deemed to have been filed. It is the defendants case that further proceedings will be rendered nugatory if the intended appeal is successful.
The plaintiff on the other hand has taken the position that the defendants have not shown any evidence of loss or damage to be entitled to a stay. Further, the defendants have been litigating from a safe distance with the subject matter (the aircraft) out of the jurisdiction of this court. In addition whereas it was intimated that the defendants were ready to abide by any conditions, they have abandoned that stand.
The conditions for granting a stay under order 41 Rule 4 are set out in rule 4(2) of the civil procedure rules.
The order shall not be made unless the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay. The court may also require provision of security.
Other than saying that the proceedings will be rendered nugatory if the appeal succeeds, the defendants applicants have not said what substantial loss may result if stay of proceedings is no ordered. Some tangible evidence is required. The defendant’s learned counsel told the court that he had no instructions on the return of the aircraft as a condition for stay. That would have provided an ideal security for the order sought. The upshot is that the defendants have not satisfied the court that they are entitled to a stay order.
Accordingly the application is hereby dismissed with costs.
Order accordingly.
Dated and delivered at Nairobi this 19th day of November, 1998
A. MBOGHOLI MSAGHA
JUDGE