[2009] KEHC 2757 (KLR)
The court dismissed the application for stay of execution on two main grounds: first, the appeal had already been summarily rejected under Section 79B of the Civil Procedure Act, meaning there was no pending appeal to be determined, and thus no basis for granting a stay. Second, even if the appeal were still alive,...
Source-derived case information.
- Citation
- [2009] KEHC 2757 (KLR)
- Parties
- Appellant: Daniel Mulwa Kambuni; Respondent: Christopher Musau Mbiti
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 127 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- I Lenaola
- Legal Topics
- Stay of Execution, Summary Rejection of Appeal, Substantial Loss Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mulwa Kambuni
Appellant
Christopher Musau Mbiti
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution is competent in the absence of a pending appeal.
- 2 Whether the applicant demonstrated substantial loss as required under Order XLI Rule 4(2) of the Civil Procedure Rules.
Ratio Decidendi
The court dismissed the application for stay of execution on two main grounds: first, the appeal had already been summarily rejected under Section 79B of the Civil Procedure Act, meaning there was no pending appeal to be determined, and thus no basis for granting a stay. Second, even if the appeal were still alive, the applicant failed to demonstrate, through affidavit evidence, any substantial loss that would be suffered if the stay was not granted, as required by Order XLI Rule 4(2) of the Civil Procedure Rules. The only relevant averment was that the appeal would be rendered nugatory, but since the appeal had already been rejected, this argument was moot. The application was therefore...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 19/1/2009 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Appeal 127 of 2008
DANIEL MULWA KAMBUNI ………….………………… APPELLANT
VERSUS
CHRISTOPHER MUSAU MBITI ……..………………RESPONDENT
(Being an appeal from the Judgment of Honourable A.W Mwangi RM dated 4th June 2008 in Resident Magistrate Civil Case No. 103 of 2007)
RULING
1. The Application dated 19/1/2009 seeks orders that the execution of the decree in Yatta RMCC No. 103/2007 be stayed pending the hearing and determination of the Appeal herein.
2. Having perused the same, I will dismiss the Application for the following reasons:-
Firstly, in exercise of powers conferred on this court by Section 79 B of the Civil Procedure Rules, I summarily rejected the Appeal and refused to admit it and therefore there is in fact no appeal to be heard and determined.
Secondly, even if there was an appeal left to be heard, I wholly agree with the advocate for the Respondent that the pre-conditions for grant of stay under Order XLI Rule 4 (2) of the Civil Procedure Rules have not been met. I say so because in the Affidavit of Daniel Mulwa Kambuni sworn on 19/1/2009 nowhere is there evidence of any substantial loss that the Applicant will suffer if the Application is not granted. I say so with respect because in all its 9 odd paragraphs the only relevant issue raised is in paragraph 7 where it is deponed that “if the stay is not granted and this appeal has arguable grounds and likelihood of success the same would be rendered nugatory.” I have in fact stated above that the appeal has been rejected and so that issue is moot. Without evidence of substantial loss to be suffered, the Applicant has failed to pass a crucial test set by Rule 4 (2) aforesaid and the court’s discretion is now wholly fettered.
Lastly, the Application as framed is wholly incompetent and misguided and is quickly dismissed with costs to the Respondent.
3. Orders accordingly.
Dated and delivered at Machakos this 28thday of May 2009.
ISAAC LENAOLA
JUDGE
In presence of: N/A for parties
ISAAC LENAOLA
JUDGE