[2008] KEHC 1043 (KLR)
The court found that the application was fatally defective as it was brought under the wrong provision of law, namely Order XXI Rule 22, which does not apply to the circumstances of this case. Additionally, the applicant failed to explain the delay of over two years in filing the application for stay of execution,...
Source-derived case information.
- Citation
- [2008] KEHC 1043 (KLR)
- Parties
- Appellant: Cyrus Gakuru Gitari; Respondent: Magondu Gakuru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 2006
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Stay of Execution, Appeal Procedure, Delay in Filing, Jurisdictional Error
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Gakuru Gitari
Appellant
Magondu Gakuru
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution was brought under the correct legal provision.
- 2 Whether the delay in filing the application for stay of execution was unreasonable and unexplained.
- 3 Whether the applicant demonstrated that substantial loss would result if stay was not granted.
Ratio Decidendi
The court found that the application was fatally defective as it was brought under the wrong provision of law, namely Order XXI Rule 22, which does not apply to the circumstances of this case. Additionally, the applicant failed to explain the delay of over two years in filing the application for stay of execution, which is a mandatory requirement under Order XLI Rule 4(2)(a). The court held that unexplained and unreasonable delay disentitles an applicant to stay orders. The mere assertion that the appeal would be rendered nugatory was insufficient without proper explanation and compliance with procedural requirements. Consequently, the application was dismissed both for being incompetent...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 27 of 2006
CYRUS GAKURU GITARI…………….....………………….APPELLANT
VERSUS
MAGONDU GAKURU…………………………………….RESPONDENT
JUDGMENT
The applicant filed the instant application on 6/2/2008 – (dated 4/2/2008) where he is seeking the following order:-
“That this Honourable court be pleased to grant a Stay of
Execution of the orders/Judgment of 30/12/2005 and any other
subsequent orders pending the hearingand determination of
the appeal herein”
The application is premised on the 4 grounds on its face and a short affidavit shown by the plaintiff which basically repeats the said grounds.
(a)The Applicant has already filed an appeal, which has not been heard and determined.
(b)That the Respondent has commenced execution as per the lower court Judgment.
(c)That the applicants appeal has got high chances of success and if execution proceeds, then the appeal shall be rendered nugatory.
(d)That it is only fair and just that the court do issue an order of stay.
The same is opposed by the respondent vide the replying affidavit dated 27/5/2008. The application is brought under order XXI Rule 22 of the Civil Procedure Rules. As rightly submitted by counsel for the respondent, this application is fatally defective as it is premised on the wrong provisions of the law. I agree with counsel on that aspect. Order XXI Rule 22 only applies to decrees which have been sent to another court in another jurisdiction for execution. This application is for a stay of execution of decree from this jurisdiction and not one which has been sent here for execution. On that basis alone, this application should fail for being fatally defective.
On merit, I have seen the Memorandum of Appeal and I actually think that the appellant has good chances on appeal given. My previous Judgments on the interpretation of Section 40 of the Law of Succession Act. Unfortunately, the applicant needed to explain to the court why he took over 2 years to file the said application Order. XLI rule 4 (2) (1) which is the proper provision to have brought the application under provides as follows:-
“No order for Stay of Execution shall be made under subrule 1
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”
The applicant must therefore explain the delay. The delay must not be unreasonable. If it is unreasonable and unexplained, then the court would not grant the stay orders sought. It is not enough for a party to claim that the appeal will be rendered nugatory unless the Stay Orders are granted. So even on merit, this application is doomed to fail. For the foregoing reasons, my finding is that this application is not first bad in law, it is also devoid of merit the same is hereby dismissed with costs to the Respondent.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this…30th day of October, 2008.
In presence:-