[2015] KEHC 2760 (KLR)
The court found that although there was a four-month delay in bringing the application, it was not inordinate. However, the applicant failed to demonstrate that he would suffer substantial loss if the stay was not granted, as the case was being heard by a competent court and the applicant retained the right of...
Source-derived case information.
- Citation
- [2015] KEHC 2760 (KLR)
- Parties
- Appellant: Capital Motors Exhibition Ltd.; Appellant: Nelson Muriuki; Appellant: Emilio Njeru Kanene; Respondent: Dedan Muthui Mwinzi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 241 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Stay of Proceedings, Substantial Loss, Security for Due Performance, Unreasonable Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Capital Motors Exhibition Ltd.
Appellant
Nelson Muriuki
Appellant
Emilio Njeru Kanene
Appellant
Dedan Muthui Mwinzi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of lower court proceedings pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the application was made without unreasonable delay.
Ratio Decidendi
The court found that although there was a four-month delay in bringing the application, it was not inordinate. However, the applicant failed to demonstrate that he would suffer substantial loss if the stay was not granted, as the case was being heard by a competent court and the applicant retained the right of appeal upon conclusion of the suit. The court was not satisfied that the requirements for granting a stay under Order 42 Rule 6 had been met, particularly regarding substantial loss. Consequently, the application for stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of lower court proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 241 OF 2013
1. CAPITAL MOTORS EXHIBITION LTD.
2. NELSON MURIUKI
3. EMILIO NJERU KANENE ……………..………………… APPELLANTS/APPLICANTS
VERSUS
DEDAN MUTHUI MWINZI ............................................................................ RESPONDENT
(Being an appeal from the Ruling of the Hon. A.G Kibiru (SPM) in the Senior Principal Magistrate’s Court at Kitui Principal Magistrate’s Court Civil Case No. 315 of 2005 dated 05th November 2013)
************************************
(Before B. Thuranira Jaden J)
R U L I N G
The application dated 14/3/2014 seeks orders that there be a stay of lower court proceedings in SPMCC No. 315 of 2005 – Kitui pending hearing and determination of this appeal.
It is stated in the affidavit in support that the Applicant was enjoined in SPMCC Kitui No. 315/2005 without the leave of the court when the case against him was time barred. That the Applicant’s Preliminary Objection was dismissed by the lower court. It is deponed that the Applicant stands to suffer substantial loss and damage if the lower court proceedings are not stayed. It is further deponed that the Applicant is prepared to deposit an insurance bond as security.
The application is opposed. According to the replying affidavit, the application is an abuse of the process of the court made in a bid to delay the hearing. That the application has been made after a delay of four months. It is further deponed that the Applicant has not established what substantial loss he stands to suffer.
The application was canvassed by way of written submissions which I have duly considered.
Under Order 42 rule 6 provides as follows:-
“No order for stay of execution shall be made undersubrule (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.”
The delay of four months has not been explained. However, the same is not inordinate.
Although the Applicant has deponed that he stands to suffer substantial loss, the case is being heard by a court of competent jurisdiction. The Applicant will still exercise his right of appeal if at the end of the suit he is still dissatisfied. (See for example Thomas Patrick Gilbert Cholomondeley –vs- R 2009 e KLR.
I find no merits in the application and dismiss the same in costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20th day of March 2015.
………………………………………
B. THURANIRA JADEN
JUDGE