[2004] KEHC 579 (KLR)
The court found that the applicant satisfied the conditions for grant of stay of execution under Order 41 Rule 4 of the Civil Procedure Rules, namely, the existence of an arguable appeal and the risk of substantial loss if the decretal sum is paid and the appeal succeeds, given the respondent's limited means. The...
Source-derived case information.
- Citation
- [2004] KEHC 579 (KLR)
- Parties
- Appellant: DWA Estate Limited; Respondent: Charles Oyuer
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 676 of 2003
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- stay of execution granted with conditions
- Legal Topics
- Stay of Execution, Appeals Process, Decretal Sum, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DWA Estate Limited
Appellant
Charles Oyuer
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the supporting affidavit was properly sworn by a competent person.
- 3 Whether the lower court's refusal to grant stay bars the present application.
Ratio Decidendi
The court found that the applicant satisfied the conditions for grant of stay of execution under Order 41 Rule 4 of the Civil Procedure Rules, namely, the existence of an arguable appeal and the risk of substantial loss if the decretal sum is paid and the appeal succeeds, given the respondent's limited means. The court rejected the respondent's objections regarding the competency of the deponent of the affidavit and the effect of the lower court's refusal to grant stay, holding that both arguments were misplaced. The court therefore granted a stay of execution on condition that the entire decretal sum is deposited in court within 14 days.
Court Disposition
stay of execution granted with conditions
Orders
- Stay of execution of the judgment is granted pending determination of the appeal, provided the entire decretal sum is deposited in court within 14 days.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
13 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.676 OF 2003
DWA ESTATE LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
VERSUS
CHARLES OYUER ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
RULING
In this application, the applicant seeks stay of execution of the Judgment of Senior Resident Magistrate delivered on September 17, 2003 pending the determination of this Appeal. The application is supported by the affidavit of Susan Wakiaga sworn on February 6, 2004.
The Applicant says that it has an arguable appeal citing the fact that the Respondent was not on duty when the alleged injury giving rise to this Judgment was suffered. The applicant fears that if the decretal sum is paid, it will not be able to recover the same if successful because the Respondent is a person of straw.
The Respondent, a farmer, says his income is shs 600/= per month. His Counsel argued that the application was defective because it was sworn by an officer of an Insurance Company, and not the Litigant; and because the lower Court had declined an application for stay. Both arguments are misplaced. The supporting affidavit is sworn by the instructing clients, who certainly has the competency to so swear; and the lower Court’s refusal to grant stay is no bar to this application.
The applicant has met the conditions required for stay under O.4l R.4, and I hereby grant stay of execution as prayed provided the entire decretal sum is deposited in Court within the next l4 days. Costs shall be in the cause.
Dated and Delivered at Nairobi this 9th day of March 2004.
ALNASHIR VISRAM JUDGE