[2016] KEHC 1577 (KLR)
The court found that the appellants failed to demonstrate the substantial loss they would suffer if the stay of execution was denied. Merely stating that the decretal sum is substantial is insufficient; the loss must be specifically shown and explained. The appellants' attempt to summarize the cause of action and...
Source-derived case information.
- Citation
- [2016] KEHC 1577 (KLR)
- Parties
- Appellant: Christabel Murunga; Appellant: Justus Murunga Makokha; Respondent: Adeti Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 117 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JK Sergon
- 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
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Christabel Murunga
Appellant
Justus Murunga Makokha
Appellant
Adeti Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have demonstrated substantial loss to warrant a stay of execution pending appeal.
- 2 Whether the application for stay of execution was filed without unreasonable delay.
- 3 Whether the appellants have offered adequate security for the due performance of the decree.
Ratio Decidendi
The court found that the appellants failed to demonstrate the substantial loss they would suffer if the stay of execution was denied. Merely stating that the decretal sum is substantial is insufficient; the loss must be specifically shown and explained. The appellants' attempt to summarize the cause of action and allege error by the trial court did not amount to proof of substantial loss. Although the application was filed without unreasonable delay and the issue of security was addressed in submissions, the failure to establish substantial loss was fatal to the application. As the other requirements for stay are dependent on this primary principle, the motion could not succeed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion dated 18th April 2016 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 117 OF 2016
CHRISTABEL MURUNGA............................................ 1ST APPELLANT
JUSTUS MURUNGA MAKOKHA ................................. 2ND APPELLANT
-V E R S U S –
ADETI LIMITED .............................................................RESPONDENT
RULING
1. The appellants Christabel Murunga and Justus MurungaMakokha took out a motion dated 18th April 2016 where they sought orders to wit:
1. That this application be certified as urgent and it be heard ex parte in the first instance.
2. That there be a stay of execution of the judgment and subsequent decree of the Hon. R. Ngetich, CM dated 25th February 2016 pending the hearing inter partes hereof.
3. That there be a stay of execution of the judgment and subsequent decree of the Hon. R. Ngetich, CM dated 25th February, 2016 pending the hearing and determination of the appeal filed herein.
4. That the costs of this application be provided for.
2. When the matter came up for interparties hearing on 12th May 2016, the parties agreed to have the matter disposed of by way of written submissions which submissions I have taken into consideration. I have also perused the affidavits filed for and against the application and considered the facts deponed therein. The appellants/applicants submitted that they will suffer substantial loss if they are made to pay kshs.720,000/= to the respondent since the 2nd appellant sold the plots to the respondent and ceded possession. They claimed that the 2nd appellant being an allotee could only execute the agreement for sale and his allotment, which he did and in so doing his obligations to the respondent ended there. They contended that the respondent did not produce any other Agreement for Sale yet they are now claiming ownership of another plot, issued courtesy of another number membership certificate of plot number 012498. They added that a sum of kssh.720,000/= is a substantial amount.
The appellants further submitted that the application has been made without unreasonable delay given that the judgment was delivered on 25th February 2016 and the appeal preferred on 17th March 2016 together with the application. They further averred that they are willing to abide and offer security that the court may order.
3. The respondents on their part submitted that the appellant has not explained how the loss of the decretal sum of kshs.720,000/= would occasion them substantial loss. They argued that the appellants have not shown that the respondents are not persons of means who would not be in a position to repay the decretal sum in the event the appeal succeeds. They asserted that the decretal amount is not a colossal one or one that appellants cannot pay, since they have failed to show the loss that they would suffer. They further contended that the appellants have not offered security in their supporting affidavit and though they have offered it in their submissions, the same ought to be clearly captured in the supporting affidavit.
4. The application, the subject of this ruling has been brought under Order 42 Rule 6 of the Civil Procedure Rules. The principles highlighted under that rule includes the fact that an applicant must be at a risk of suffering substantial loss if the orders for stay of execution fail to issue. The application must also have been brought without undue delay and the provision of security should also be considered.
5. On the first limb, the appellants claims that the decretal sum of kssh.720,000/= plus costs and interests is a substantial sum. They claim that they will suffer substantial loss but they have failed to show what the loss amounts to. It is not enough to merely state that one will suffer substantial loss. That loss should be demonstrated and explained for the court to consider before issuing the order of execution. The appellant has attempted to explain the substantial loss by summarising the cause of action in this suit as it was before the trial court. They have tried to show that the court erred in its holding. In my humble view that does not explain the substantial loss they would suffer as a result. The issues raised therein are the subject of this appeal and can only be determined at the hearing of the appeal. In a nutshell, the appellants have not established that they will suffer substantial loss if order for stay is denied.
6. On the second limb, it is apparent that the application for stay of execution was filed within a reasonable time.
7. On the third limb, the applicant is required to offer security, for the due performance of the decree. The appellant did not offer security in their supporting affidavit but instead they did so in their submissions. The cardinal point is that, whether or not the appellants make an offer for security, the court is enjoined by law to consider the issue before determining the application. The main consideration in this motion is whether or not the applicants have shown the substantial loss they would suffer if the order for stay is denied. In this case the applicants failed to satisfy that requirement. Since the other principles are dependent on the first principle the motion, fails.
8. In the end, the motion is ordered dismissed with costs to the respondent.
Dated, Signed and Delivered in open court this 29th day of September, 2016.
J. K. SERGON
JUDGE
In the presence of:
.............................................................. for the Appellants
............................................................... for the Respondent