[2014] KEHC 5186 (KLR)
The court found that the appellant, a public institution, would suffer substantial loss if stay of execution was not granted, particularly as the headmaster faced personal arrest for a liability not his own, and the respondent's ability to refund the decretal sum was doubtful. The application was brought without...
Source-derived case information.
- Citation
- [2014] KEHC 5186 (KLR)
- Parties
- Appellant: Board of Governor, Malindi High School; Respondent: Katana Mwagandi Menza
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 43 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition that the appeal is prosecuted within 12 months; otherwise, stay lapses automatically.
- Judges
- CW Meoli
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Board of Governor, Malindi High School
Appellant
Katana Mwagandi Menza
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether security for due performance is necessary and appropriate in the circumstances.
Ratio Decidendi
The court found that the appellant, a public institution, would suffer substantial loss if stay of execution was not granted, particularly as the headmaster faced personal arrest for a liability not his own, and the respondent's ability to refund the decretal sum was doubtful. The application was brought without unreasonable delay. Given the appellant's status as a public institution, the court deemed it impractical to order security for due performance. Instead, the court conditioned the stay on the appellant prosecuting the appeal within 12 months, failing which the stay would lapse automatically. This approach balanced the interests of both parties and ensured the appeal would be...
Court Disposition
Stay of execution granted on condition that the appeal is prosecuted within 12 months; otherwise, stay lapses automatically.
Orders
- Stay of execution of the decree in Malindi CMCC No. 395A of 2003 is granted pending appeal.
- The appellant shall prosecute the appeal within 12 months from the date of this ruling; failing which, the stay shall lapse automatically.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
APPELLATE SIDE
CIVIL APPEAL NO. 43 OF 2013
(Being an appeal from the ruling and order in Civil Suit No. 395A of 2003 of the Chief Magistrate’s Court at Malindi before Hon. D. Ogembo – SRM)
BOARD OF GOVERNOR, MALINDI HIGH SCHOOL.….....… APPELLANT
VERSUS
KATANA MWAGANDI MENZA ……………….…..........……. RESPONDENT
RULING
The appellant’s application dated 27th September, 2013 was brought under Order 42 Rule 6(1) of the Civil Procedure Rules, primarily, and it seeks stay of execution pending appeal. The application is supported by the affidavit of Emmanuel Simanya Kitsao the Headmaster of the Malindi High School, against whom warrants of arrest were issued in the Lower Court, in execution of an exparte judgment. The judgment was entered in a suit in which the respondent sued the appellant for damages for unlawful termination of his services.
The applicant asserts that substantial loss will be occasioned upon the school and the headmaster if stay is not granted, and that the respondent is a man of straw. The respondent filed a replying affidavit in which he disputes the appellant’s assertions. He dismisses the application as an afterthought designed to frustrate his bid to enjoy the fruits of his judgment. Further, he depones that the appellant has not demonstrated how it will suffer substantial loss. The parties agreed to dispose of the application by way of written submissions. I have considered these alongside the application and respective affidavits.
Although the parties’ submissions appear to dwell at some length on the question whether or not the appellant has an arguable appeal, the relevant criteria for consideration in this application is set in Order 42 rule 6(2) which states:
“No order for stay of execution shall be made under subrule (1) 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; and
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”
While I have no doubt that this application has been timeously brought, the question of substantial loss requires some consideration. In many cases, substantial loss, especially where a monetary decree is involved, has been based on the ability or otherwise of the decree holder to repay any moneys if the appeal succeeds. Indeed in the case of Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1988] KAR 1018the Court of Appeal stated that it is rare to find a case where such ability or inability is not also equivalent to the question whether an appeal will be rendered nugatory. The respondent in this case was a junior member of the staff at the time of dismissal. It is not a far fetched assertion that he may not be able to pay back the decretal sum of the appeal succeeds.
Secondly, a warrant of arrest has been issued against the headmaster of the school personally. He says he has no vote from which to settle the decretal sum. The student body and indeed the entire school stands to suffer if the headmaster is arrested or incarcerated. Not to mention his own personal suffering yet the claim was not a personal liability. I find that the applicant will suffer substantial loss if the stay sought is denied.
On the question of security, I note that the appellant is a public institution and an order for security may be difficult for the appellant to comply with, or within good time. Instead, I direct that the appellants take all the necessary steps to ensure that the appeal is prosecuted within 12 months of today’s date, failing which the stay I hereby grant under prayer (3) will lapse automatically. Thereafter the respondent will be at liberty to execute.
Costs will abide the outcome of the appeal.
Delivered and signed at Malindi this20th day of March, 2014in the presence of Mr. Mouko for the applicant/appellant, Mr. Gekanana holding brief for Mr. Gicharu for the respondent.
Court clerk – Samwel
C. W. Meoli
JUDGE