[2007] KEHC 708 (KLR)
The court found that the appellant had satisfied the requirements for stay of execution under Order 41 rule 4(2) of the Civil Procedure Rules. The appellant demonstrated a real risk of substantial loss if stay was not granted, as the respondent did not rebut the claim of being unable to refund the decretal sum. The...
Source-derived case information.
- Citation
- [2007] KEHC 708 (KLR)
- Parties
- Appellant: Blowplast Limited; Respondent: Ishmael Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 257 of 2007
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- stay of execution granted pending appeal
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- 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
Blowplast Limited
Appellant
Ishmael Maina
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether adequate security has been provided for due performance of the decree.
Ratio Decidendi
The court found that the appellant had satisfied the requirements for stay of execution under Order 41 rule 4(2) of the Civil Procedure Rules. The appellant demonstrated a real risk of substantial loss if stay was not granted, as the respondent did not rebut the claim of being unable to refund the decretal sum. The application was made promptly, and the appellant had already deposited the decretal sum as security. Balancing the interests of both parties, the court granted the stay to preserve the subject matter of the appeal and ensure that the appeal would not be rendered nugatory, while also safeguarding the respondent's interests by maintaining the security deposit until the appeal's...
Court Disposition
stay of execution granted pending appeal
Orders
- Stay of execution of the lower court's decree is granted pending disposal of the appeal or further order of the court.
- The sum of KShs. 159,500.00 deposited by the appellant shall remain deposited until disposal of the appeal or further order of the court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 257 OF 2007
BLOWPLAST LIMITED.………………..…………………APPELLANT
V E R S U S
ISHMAEL MAINA ………………………………………RESPONDENT
R U L I N G
This is an application (notice of motion dated 4th May, 2007) by the Appellant for stay of execution of decree of the lower court pending disposal of the appeal herein. It is brought under Order 41, rule 4 of the Civil Procedure Rules. Under sub-rule (1) of that rule, the appellate court may consider an application for stay of execution, and may make such order thereon as may to it seem just. Under sub-rule (2) of the same rule, no order for stay of execution may be made unless:-
(a) 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; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
I have read the two affidavits sworn in support of the application as well as the replying affidavit. I have also considered the submissions of the learned counsels appearing, including the cases cited. In applications of this nature what the court should endeavour to do is to secure the interests of both parties in the best way possible to enable the appellant to pursue his appeal without the danger of it being rendered nugatory and also to ensure that should the appeal ultimately fail, the fruits of the respondent’s judgment will be readily available to him. I will therefore not dwell on the technicalities raised during arguments.
The Appellant apprehends, on reasonable grounds, that it may not be able to recover from the Respondent the decretal sum in the event that its appeal succeeds; the Appellant has stated categorically that the Respondent is a man of straw. In response the Respondent has not at all made any effort to rebut this; he has not shown his means, something that would be peculiarly within his knowledge. I am therefore satisfied that the Appellant stands to suffer substantial loss unless the order of stay is granted. I am also satisfied that the application has been made without unreasonable delay.
The Appellant has already provided appropriate security by depositing in court KShs. 159,500/00 towards the decretal sum as ordered by this court on 9th May, 2007.
I will in the event grant the stay of execution sought. The same shall remain in place pending disposal of the appeal or the further order of the court. The sum of KShs. 159,500/00 deposited shall remain so deposited until disposal of the appeal or until the further order of the court. There will be orders accordingly.
DATED AT NAIROBI THIS 7TH DAY OF DECEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 7TH DAY OF DECEMBER, 2007