[2011] KEHC 3737 (KLR)
The court found that while the applicant was ready and willing to provide security as may be ordered, there was no evidence in the supporting affidavit to demonstrate that the applicant would suffer substantial loss if the stay was not granted. The omission in the application regarding the precise prayer was...
Source-derived case information.
- Citation
- [2011] KEHC 3737 (KLR)
- Parties
- Appellant: Eldoret Steel Mills; Respondent: Ernest Njeka Ombango
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 40’A’ of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- J Karanja
- Legal Topics
- Stay of Execution, Order 42 Rule 6, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eldoret Steel Mills
Appellant
Ernest Njeka Ombango
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the orders made on 30th December 2010 pending appeal.
- 2 Whether the applicant has demonstrated substantial loss may result if stay is not granted.
- 3 Whether the application was made without unreasonable delay and security for due performance has been offered.
Ratio Decidendi
The court found that while the applicant was ready and willing to provide security as may be ordered, there was no evidence in the supporting affidavit to demonstrate that the applicant would suffer substantial loss if the stay was not granted. The omission in the application regarding the precise prayer was excusable as a matter of form, but the substantive requirement of showing substantial loss was not met. The court held that whether the order made on 30th December 2010 was irregular or unlawful was a matter for the intended appeal and not for determination at this stage. Consequently, the application for stay of execution was dismissed for lack of merit.
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
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL APPEAL NO. 40’A’ OF 2009
ELDORET STEEL MILLS ...........................................................................................APPELLANT
VERSUS
ERNEST NJEKA OMBANGO..................................................................................RESPONDENT
R U L I N G
The Notice of Motion dated 10th February 2011 is for the basic order that there by a stay of execution of the orders made on 30th December, 2010 pending the hearing and determination of this application. If this be the case, then the determination of this application today would render the application spent. However, in as such as the application is made under Order 42 Rule 6 of the Civil Procedure Rules 2010, it would appear that there was an oversight on the part of the applicant in failing to indicate that the application is essentially for stay of execution of the orders made on 30th December 2010 pending the hearing and determination of an intended appeal.
A look at the grounds in support of the application reveals that the application is for stay of execution pending appeal rather than the hearing and determination of the application. The omission by the applicant is on form rather than substance. In that regard, the omission is excusable and does not render the application spent and/or fatally defective.
Be that as it may, Order 42 Rule (6) (2) provides for conditions for the grant of stay of execution pending appeal. Firstly, the court must be satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay. Secondly, security for the due performance of the disputed decree or order as may ultimately be binding on the applicant has to be given as the court orders.
Having considered the application in the light of the objection thereto by the respondent and also having heard the rival arguments advanced by the parties, this court is satisfied that the applicant is ready and willing to provide security as may be ordered.
However, this court is far from being satisfied that the applicant may suffer substantial loss if stay of execution is not granted. Nothing in the supporting affidavit demonstrates that there is the likelihood of the applicant suffering substantial loss if stay is not granted. Whether the order made by the court on 30th December 2010 was irregular, improper and/or unlawful is a matter which will best be determined after the hearing of the intended appeal. This court cannot purport to sit on appeal against an order made by a court of equal jurisdiction.
In the end result, the present application is devoid of merit. It is hereby dismissed with costs.
J.R. KARANJA
JUDGE
(Read and signed this 3rd day of March 2011 in the presence of M/S Khayo holding brief for Nyairo for respondent and Mr. Omboto holding brief for Miyienda for applicant).