[2009] KEHC 3389 (KLR)
The court found that the applicant failed to demonstrate how his appeal would be rendered nugatory if stay of execution was not granted. The applicant did not establish any substantial loss nor did he offer any security for the due performance of the decree as required under Order XLI Rule 4(2) of the Civil...
Source-derived case information.
- Citation
- [2009] KEHC 3389 (KLR)
- Parties
- Appellant: Cyrus Komo Chege; Respondent: Mineh Wairigu Mbugua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- 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
Cyrus Komo Chege
Appellant
Mineh Wairigu Mbugua
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order XLI Rule 4(2) of the Civil Procedure Rules.
- 2 Whether substantial loss has been demonstrated by the applicant to warrant a stay of execution.
- 3 Whether the applicant has provided or offered security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate how his appeal would be rendered nugatory if stay of execution was not granted. The applicant did not establish any substantial loss nor did he offer any security for the due performance of the decree as required under Order XLI Rule 4(2) of the Civil Procedure Rules. The court emphasized that the mere allegation that the appeal would be rendered nugatory was insufficient without concrete demonstration of substantial loss. Consequently, the application for stay of execution pending appeal was found to lack merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 25 of 2009
CYRUS KOMO CHEGE……………...…………APPELLANT
VERSUS
MINEH WAIRIGU MBUGUA………………...RESPONDENT
R U L I N G
1. By a chamber summons dated 27th April, 2009, Cyrus Komo Chege, who is the appellant in this appeal, seeks an order for stay of execution pending the hearing and determination of his appeal, against the ruling dated 28th January, 2009, delivered by the Chief Magistrate in the Magistrate’s Court at Kiambu. The application is supported by an affidavit sworn by the appellant, in which he maintains that his appeal has very high chances of success and that unless an order for stay of execution is granted, the appeal will be rendered nugatory. Mr. Kinga who appeared for the appellant, relying on Butt vs Rent Restriction Tribunal [1982] KLR 417, and Bob Morgan Systems Ltd & another vs Jones [2004] 1KLR 194, urged the court to grant the orders sought.
2. The application is opposed through a replying affidavit sworn by Mr. Julius Orenge. It is maintained that the application is incompetent and fatally defective as there is nothing to be stayed in the ruling subject of the appeal. It is further contended that the applicant has not established substantial loss.
3. I have considered the ruling dated 25th January, 2009 which is sought to be stayed. In the ruling, the trial magistrate has sought to clarify the actual sale price set out in the consent order dated 30th November, 2007. The trial magistrate has clarified that the consent order signed by the parties set up the purchase price at Kshs.1. 2 million. The appellant apparently is aggrieved as he was of the view that the purchase price should read 2. 5 million.
4. Under Order XLI Rule 4(2) of the Civil Procedure Rules, an order for stay of execution pending appeal can only issue on the following conditions:
(i) Where the court is satisfied that substantial loss will result to the applicant unless the order of stay of execution is issued;
(ii) That the application has been made without unreasonable delay;
(iii) That the applicant has provided or is ready to provide such security as the court may order for the due performance of the decree.
5. In this case, the applicant has merely alleged that his appeal will be rendered nugatory unless an order for stay of execution is granted. The applicant has not demonstrated to this court in what way his appeal will be rendered nugatory as it is evident that should the applicant succeed in his appeal, the purchase price would be adjusted upwards. Of more importance is the fact that the applicant has neither alleged nor established any substantial loss nor has any security been offered for the due performance of the decree. For the above reasons, I find no merit in this application and do therefore dismiss it with costs. Those shall be the orders of this court.
Dated and delivered this 15th day of June, 2009
H. M. OKWENGU
JUDGE
Ruling delivered
Advocate for the appellant absent
Advocate for the respondent absent