[2001] KECA 276 (KLR)
The court found that the applicant failed to demonstrate any compelling reason why the order to deposit security could not be complied with, other than the claim that the High Court did not allow filing of an affidavit of means. The court held that the size of the sum alone does not render the matter urgent, and the...
Source-derived case information.
- Citation
- [2001] KECA 276 (KLR)
- Parties
- Applicant: Ajay Shah; Respondent: Trust Bank Ltd; Respondent: Nitin Chandaria Vinod Patel
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 279 of 2001
- Procedural Posture
- Stay Application / Application for Certification of Urgency in Stay of Execution Pending Appeal
- Outcome
- Application for certification of urgency refused; costs of the day awarded to the respondent.
- Legal Topics
- Stay of Execution, Security for Costs, Urgency Certification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ajay Shah
Applicant
Trust Bank Ltd
Respondent
Nitin Chandaria Vinod Patel
Respondent
Procedural Posture
Stay Application / Application for Certification of Urgency in Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution pending appeal should be certified as urgent.
- 2 Whether the applicant has provided sufficient reasons for non-compliance with the High Court order to deposit security.
- 3 Whether the size of the sum claimed in the plaint justifies urgency.
Ratio Decidendi
The court found that the applicant failed to demonstrate any compelling reason why the order to deposit security could not be complied with, other than the claim that the High Court did not allow filing of an affidavit of means. The court held that the size of the sum alone does not render the matter urgent, and the potential loss of liberty could be avoided by compliance with the order. Therefore, the application for certification of urgency was refused.
Court Disposition
Application for certification of urgency refused; costs of the day awarded to the respondent.
Orders
- The motion is not certified as urgent.
- Costs of today awarded to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 279 OF 2001 (156/01 UR)
BETWEEN
AJAY SHAH .................................................................................. APPLICANT
AND
TRUST BANK LTD NITIN CHANDARIA VINOD PATEL ...................................... RESPONDENTS
(Application for stay of execution pending an appeal from a ruling of the High Court of Kenya at Nairobi (Ringera J) dated 9th August, 2001
in
H.C.C.S. NO. 875 OF 2001) *****************
R U L I N G
There can be no doubt on the material before me that the sum the applicant has been ordered to deposit is very large. But it is the sum claimed in the plaint and the superior court thinks the applicant ought to provide security for it. I am not concerned with the matter of whether or not a stay will be granted. That is for the bench which will hear the application. The question is whether the matter is urgent and on this point, I still see no urgency. All that is being said is that unless the matter is certified urgent, the applicant may lose his liberty. That need not necessarily follow; the applicant can avoid that consequence by complying with the order.
I am not given any reason why the order cannot be complied with except that the superior court did not give the applicant a chance to file an affidavit of means. That being so, I am unable to say why the applicant cannot comply with the order. True, the money is a very large sum but it is what is claimed in the plaint and that alone cannot make the matter urgent. I still refuse to certify the motion as being urgent and I award the costs of today to the respondent.
Dated and delivered at Nairobi this 13th day of August, 2001.
R. S. C. OMOLO --------------- JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR