[2007] KEHC 1034 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for the grant of a stay of execution as required under Order 41 Rule 4 of the Civil Procedure Code. No substantial loss was shown, and the applicant denied the need to provide security. The court also held that the alleged constitutional...
Source-derived case information.
- Citation
- [2007] KEHC 1034 (KLR)
- Parties
- Applicant: Duncan Githinji Njeru; Respondent: Minister of Finance; Respondent: Commissioner of Insurance; Respondent: Statutory Manager United Insurance; Respondent: Hon Attorney General; Interested Party: Monica Wacuka Ngera
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 88 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs to respondent
- Legal Topics
- Stay of Execution, Money Decree, Inherent Powers, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Githinji Njeru
Applicant
Minister of Finance
Respondent
Commissioner of Insurance
Respondent
Statutory Manager United Insurance
Respondent
Hon Attorney General
Respondent
Monica Wacuka Ngera
Interested Party
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree in HCC No. 75/1998.
- 2 Whether there are constitutional issues arising between the applicant and respondent in relation to the execution of the decree.
- 3 Whether the requirements under Order 41 Rule 4 of the Civil Procedure Code for grant of stay have been satisfied.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for the grant of a stay of execution as required under Order 41 Rule 4 of the Civil Procedure Code. No substantial loss was shown, and the applicant denied the need to provide security. The court also held that the alleged constitutional issues arising from the contractual relationship between the applicant and his insurer were irrelevant to the execution of the decree by the respondent. The court exercised its inherent powers to prevent further delay in the respondent's enjoyment of the judgment and dismissed the application for stay with costs to the respondent.
Court Disposition
application dismissed with costs to respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Case 88 of 2006
DUNCAN GITHINJI NJERU………………....………………………..APPLICANT
VERSUS
MINISTER OF FINANCE…………………….……….………1ST RESPONDENT
COMMISSIONER OF INSURANCE……….……...….………2ND RESPONDENT
STATUTORY MANAGER UNITED INSURANCE…….....…3RD RESPONDENT
HON ATTORNEY GENERAL……………………….....……..4TH RESPONDENT
AND
MONICA WACUKA NGERA………………..……...……..INTERESTED PARTY
RULING
Notice of Motion dated 17/2/2007 seeks stay of court orders made on 16/1/2007. That order was made only in respect of HCC No. 75/1998 where the applicant is a judgment debtor. The orders would empower the Respondent herein (Decree holder in 75/1998) to execute decree he holds against the Applicant. No appeal has been filed against that decree. After perusing the application and the affidavit filed by both parties, it is my finding that the Applicant herein has embarked on a path calculated to delay the Respondent enjoyment of the fruits of his judgment. There is no court order compels the Applicant’s Insurance Company to pay the Respondent the amount of the decree. There is a contractual relationship between the applicant and his insurer. Constitutional issues may arise in the said contractual relationship. I do not find that such relationship has anything to do with the recovery of decree by Respondent against the Applicant.
I find no merit in this matter and I must exercise my inherent powers to prevent the Respondent from continuing to be denied his rights by the Applicants.
I find no constitutional issue between the Respondent and the Applicant. It is infact the Respondents constituted rights which being breached in this matter of execution of a money decree.
Furthermore the requirements prescribed under order 41 Rule 4 C.P.C are not complied with. No substantial loss is demonstrated and the Applicant denies the need to give security.
I find no sufficient cause has been shown to warrant the issue of stay order.
I dismiss the application with costs to Respondent.
Dated this 10th July, 2007.
J. N. KHAMINWA
JUDGE
10/7/2007
Khaminwa – Judge
Njue –Clerk
Mr. Njagi for Applicant
N/A
Read in open court.
J. N. KHAMINWA
JUDGE