[2019] KEHC 160 (KLR)
The court found that while the applicant expressed willingness to provide security, they failed to demonstrate that they would suffer substantial loss if stay was refused. The mere payment of the decretal sum does not constitute substantial loss, and the applicant did not provide evidence that the respondent would...
Source-derived case information.
- Citation
- [2019] KEHC 160 (KLR)
- Parties
- Appellant: CECYPO (K) LIMITED; Respondent: KENNEDY OTIENO AGONDA
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 71 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CECYPO (K) LIMITED
Appellant
KENNEDY OTIENO AGONDA
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss as required for grant of stay of execution pending appeal.
- 2 Whether the applicant has provided adequate security for the due performance of the decree.
- 3 Whether the application is competent in light of a previous similar application in the lower court.
Ratio Decidendi
The court found that while the applicant expressed willingness to provide security, they failed to demonstrate that they would suffer substantial loss if stay was refused. The mere payment of the decretal sum does not constitute substantial loss, and the applicant did not provide evidence that the respondent would be unable to refund the sum if the appeal succeeded. The applicant's assertion regarding the respondent's financial status was unsupported and amounted to mere opinion. The court also clarified that although Order 42 does not bar a subsequent application in the appellate court, repeated similar applications in multiple courts could be an abuse of process. Consequently, the...
Court Disposition
application dismissed with costs
Orders
- The application dated 15th October 2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CIVIL APPEAL NO.71 OF 2019
CECYPO (K) LIMITED.................................................................APPELLANT
VERSUS
KENNEDY OTIENO AGONDA...............................................RESPONDENT
RULING
[1]Application dated 15th October 2019, considered in the light of the supporting grounds and those in opposition thereto.
The key elements with regard to Order 42 Rule 6 are substantial loss and security.
[2]Whereas the applicants have shown that they are willing to provide security, they have not shown that they shall suffer substantial loss if stay is refused. The payment of the decretal sum is not by itself substantial loss. One has to establish more than just mere payment of decretal sum to prove substantial loss.
[3]Besides, the applicant opines that they shall suffer such loss simply because they are unaware of the respondent’s financial status. The onus to establish that the respondent is a person of straw lays with the applicant and does not shift to the respondent. Other than mere opinion, the applicant has not established that the respondent is a person of straw. On the issue of whether the application is competent in view of a previous successful application by the applicant in the lower court, this court’s view is that Order 42 does not prevent the applicant making a subsequent application in the court in which the appeal shall be heard. However, it would be an abuse of the court process for several similar applications to be made in several courts.
[4]In sum, the present application is devoid of merit and is hereby dismissed with costs.
J.R. KARANJAH
JUDGE
11. 11. 2019
[Dated and delivered this 11thday of November, 2019
M/s Songwa holding brief for Morara & Co. for Appellant
Mr. Nyatundo for Respondent