[2009] KEHC 3361 (KLR)
The court found that the applicant failed to demonstrate any substantial loss that would be occasioned if the stay of execution was not granted. The sum in question was minimal (Ksh. 7,525), and the respondents were sued in their personal capacity, making recovery possible should the appeal succeed. The 2nd...
Source-derived case information.
- Citation
- [2009] KEHC 3361 (KLR)
- Parties
- Appellant: Beatrice Mutuo Nziru; Respondent: John Misyili Ikuli; Respondent: Sammy Kathuku
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 217 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Beatrice Mutuo Nziru
Appellant
John Misyili Ikuli
Respondent
Sammy Kathuku
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if the stay is not granted.
- 3 Whether the respondents' capacity to refund the decretal sum if the appeal succeeds is in doubt.
Ratio Decidendi
The court found that the applicant failed to demonstrate any substantial loss that would be occasioned if the stay of execution was not granted. The sum in question was minimal (Ksh. 7,525), and the respondents were sued in their personal capacity, making recovery possible should the appeal succeed. The 2nd respondent's undertaking to refund the amount if necessary was unchallenged. The court concluded that the application lacked merit and dismissed it with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 20/4/2009 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL APPEAL 217 OF 2008
BEATRICE MUTUO NZIRU ……………………… APPELLANT/APPLICANT
VERSUS
JOHN MISYILI IKULI ….……………… 1ST RESPONDENT/ RESPONDENT
SAMMY KATHUKU ……………………. 2ND RESPONDENT/RESPONDENT
(Being an appeal from the Judgment of Honourable D.M. Ochenja dated 8th March 2009
in Mwingi Senior Resident Magistrate Civil Case No. 240 of 20079)
RULING
1. The Application before me seeks orders under Order XLI Rule 4 of the Civil Procedure Rules that the execution of the judgment and decree passed on 10/12/2008 be stayed pending the hearing and determination of the Appeal herein.
2. I have read the Supporting Affidavit sworn on 20/4/2009 by the Applicant, Beatrice Mutuo Nziru. I have also read the Replying Affidavit sworn on 24/4/2009 by the 2nd Respondent. It is clear to me that the Application is without merit for the simple reason that what is in issue is the paltry sum of Ksh.7,525/= being costs awarded to the Respondents at the conclusion of Mwingi PMCC No. 240/2007. The Applicant depones at paragraph 8 of her Affidavit:-
“8. That I am likely to suffer irreparably if the costs are paid to the respondents since they represent an unregistered society and there are no chances that upon the money being released to the respondents I will be able to recover it from them should my appeal succeed.”
3. The record would show that the Respondents are sued in their personal capacity and not on behalf of any society, registered or unregistered and therefore recovery of the said sum, should the Appeal succeed, will be a matter directed at them and not anyone else. In any event, at paragraph 7 of the Replying Affidavit, the 2nd Respondent states as follows:-
“7. That the amount involved is so small which I undertake to pay in the event her appeal succeeds since I am a teacher in government employment.
4. That assertion has not been challenged and crucially I see no substantial loss to be occasioned to the Applicant if the orders sought are not granted – see New Stanley Hotel Ltd vs Arcade Tobacconists Ltd (1986) KLR 757. Even with the offer to deposit the said sum in court, without evidence of substantial loss, I see no reason to say more.
5. The Application dated 20/4/2009 is without merit and is dismissed with costs to the Respondents.
6. Orders accordingly.
Dated and delivered at Machakos this 1stday of July2009.
ISAAC LENAOLA
JUDGE
In presence of: Respondents present
N/A for Applicant
ISAAC LENAOLA
JUDGE