[2014] KEHC 7031 (KLR)
The court found that the application for stay of execution was incompetent because it was not first made to the court that passed the decree and was not accompanied by a certified copy of the judgment appealed against, both of which are mandatory procedural requirements under Order 42, rule 6 of the Civil Procedure...
Source-derived case information.
- Citation
- [2014] KEHC 7031 (KLR)
- Parties
- Appellant: Eddison Henrie Barry t/a Business & Allied Equipment; Respondent: Oliver Ndichu Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 60 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- DA Onyancha
- Legal Topics
- Stay of Execution, Appeals Process, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eddison Henrie Barry t/a Business & Allied Equipment
Appellant
Oliver Ndichu Kimani
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution was properly before the appellate court.
- 2 Whether failure to attach a certified copy of the judgment or to first apply to the trial court rendered the application incompetent.
- 3 Whether the applicant demonstrated substantial loss or irreparable harm if stay was not granted.
Ratio Decidendi
The court found that the application for stay of execution was incompetent because it was not first made to the court that passed the decree and was not accompanied by a certified copy of the judgment appealed against, both of which are mandatory procedural requirements under Order 42, rule 6 of the Civil Procedure Rules. Even if the application were considered on its merits, the applicant failed to demonstrate that he would suffer substantial or irreparable loss if the stay was not granted, as the decretal sum was modest and refundable. The court also noted unexplained delay in bringing the application and found that the grounds of appeal did not indicate high chances of success....
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 60 OF 2013
EDDISON HENRIE BARRY T/A BUSINESS
& ALLIED EQUIPMENT. ...APPLICANT/APPELLANT
VERSUS
OLIVER NDICHU KIMANI. .................. RESPONDENT
R U L I N G
The application before the court is a Notice of Motion by the Appellant and is dated 14th March, 2013. It seeks an order of stay of execution of the decree in Nairobi Milimani CMCC No. 6892 of 2006, pending the hearing and final determination of this appeal. The grounds upon which the application is based are that: -
The appeal has overwhelming chances of success.
The appeal will otherwise the rendered nugatory.
The application was filed without undue delay and in the interest of justice.
Grant of orders made will not occasion prejudice as the subject matter is in the custody of the Respondent
The applicant offers to abide with any conditions imposed by the court on granting the stay.
The application is opposed by the Respondent on the ground that the application is incompetent as it ought to have first been filed in court that passed the decree and that the certified copy of the decree or judgment was not annexed to the application. Finally the Respondent also averred that there was inordinate delay to file the application and that the applicant failed to demonstrate that a substantial loss will be suffered by him if the stay sought is not granted.
I have carefully considered the above facts and grounds advanced by both sides. It is not denied that this application was not first made to the court from which this appeal was preferred. A careful reading of Order 42, rule 6 of the Civil Procedure Rules appear to state that an application for stay of execution shall first and foremost be made to the court that passed the decree before it can be made to the court to which the appeal is preferred.
Secondly, the application must always be accompanied by a certified copy of the Judgment or ruling appealed against and that is trite law.
In this case, neither was the application first made to the court that passed it nor was the application accompanied by a certified copy of the judgment appealed against. For either reason this court would strike out and dismiss the application for incompetence.
However, even on the merits of the application, this court finds that the applicant has failed to demonstrate that he would suffer irreparable or substantial loss if the application is refused. The decretal sum is only Ksh.23,000/- which the Respondent would easily refund if he loses the appeal.
I have also observed that the applicant did not explain the delay of 60 days until execution was threatened. It is likely that the application was therefore not originally intended but came as second thought.
I also have made a quick glance on the grounds of appeal in relation to the reasons given in support of judgment. The chances of success of the appeal may not be high.
In the above circumstances, this application has no merit and is hereby dismissed with costs. Orders accordingly.
Dated and delivered at Nairobi this 19th day of February 2014.
......................................
D A ONYANCHA
JUDGE