[2009] KEHC 788 (KLR)
The court held that a stay of execution cannot be granted where the order appealed from is a dismissal (negative order) that is not capable of execution. The respondents do not hold any decree that can be executed against the appellant, except for costs, and the appellant did not seek a stay of execution regarding...
Source-derived case information.
- Citation
- [2009] KEHC 788 (KLR)
- Parties
- Appellant: Erick Ouma Abongo; Respondent: Clerk, Municipal Council of Migori; Respondent: Julius Aruti; Respondent: Abdi Ahmed Ibrahim
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 163 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Negative Orders, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Ouma Abongo
Appellant
Clerk, Municipal Council of Migori
Respondent
Julius Aruti
Respondent
Abdi Ahmed Ibrahim
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution can be granted where the lower court's order is a dismissal (negative order) not capable of execution.
- 2 Whether the appellant demonstrated substantial loss or that the appeal would be rendered nugatory if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay and if security for due performance is required.
Ratio Decidendi
The court held that a stay of execution cannot be granted where the order appealed from is a dismissal (negative order) that is not capable of execution. The respondents do not hold any decree that can be executed against the appellant, except for costs, and the appellant did not seek a stay of execution regarding costs. The application for stay was therefore misconceived and lacked merit. The court relied on established case law confirming that negative orders are not subject to stay of execution, and that the requirements for granting stay—such as demonstration of substantial loss and provision of security—presuppose the existence of a positive executable order, which was absent in this...
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Appeal 163 of 2008
ERICK OUMA ABONGO…………………………APPELLANT
-VERSUS-
1. CLERK, MUNICIPAL COUNCIL OF MIGORI
2. JULIUS ARUTI
3. ABDI AHMED IBRAHIM………………..…RESPONDENTS
R U L I N G
On 14/8/2008 the Acting Senior Principal Magistrate, Migori, dismissed with costs the suit which the appellant in this case had brought against the respondents. The appeal was filed on 10/9/2008 to challenge that decision. Pending the hearing and determination of that appeal, the appellant has applied under Orders 41 rule 4 and 21 rule 22 of the Civil Procedure Rules and sections 3 and 3A of the Civil Procedure Act to have stayed the execution of the judgment of the lower court. Mr. Ocharo prosecuted the application which Mr. odero for the respondents opposed.
I have considered the application and the submission made by counsel. Mr. Ocharo spent quite some time analyzing the evidence that was tendered in the subordinate court in effort to show that the appellant had a good case which ought not to have been dismissed. Counsel, therefore, asked the court to conclude that the appeal filed had high chances of success. His contention was that the trial court did not appreciate the law when it found that his client lacked capacity to bring the suit. Mr. Odero’s response was that the merits of the appeal will have to await the hearing of the matter. His further submission was that stay cannot be granted where there is a negative order, like in this case, which is not capable of execution. He relied, for this point, on the decision in Exclusive Estates Limited .V. Kenya Posts and Telecommunications Corporation and Another, Civil Application no. 62 of 2004 at Nairobi. Counsel further submitted that the appellant had not demonstrated that he would suffer substantial loss, or what the appeal would be rendered nugatory, if the applications is not granted. He relied on KenyaShell Limited .V. Benjamin Karuga Kibiru & Another [1992-88] 1KAR 1018.
Mr. Ocharo’s worry was that if there is no stay the plot may leave the hands of the 3rd respondent.
The appeal may very well have merits, but at this stage Order 41 rule 4(2) requires the court, before granting stay, to be satisfied that substantial loss may result to the appellant unless the order is made and the application is made without unreasonable delay. (See New Stanley Hotel Limited .V. Arcade Tobacconists Limited [1986] KLR 757). Order 41 rule 4(2) (b) then requires that security for the due performance of the decree be provided by the appellant. Of course, this presupposes that the respondent is holding a decree which he is going to execute against the appellant. In this case, the respondents are not holding any decree that they can execute against the appellant. Except that they will execute for costs. In Excusive Estates
Limited case (above), this is what the Court of Appeal stated:
“The order which dismissed the suit was a negative order which is not capable of execution. If the order sought is not granted, the appeal will not be rendered nugatory because if the appeal succeeds the dismissal order will be set aside and the suit will be restored on the register. The application has not sought an order for stay of execution of the decree on costs of the dismissed suit……………………..”
In Venture Capital And Credit Ltd .V. Consolidated Bank Of Kenya Ltd, Civil Application No. 349 Of 2003 At Nairobi, the Court of Appeal observed that where there was no positive order made in favour of the respondent which is capable of execution the application of stay of execution is misconceived.
In short, I do not find merit in this application as the respondents do not hold any decree that they can execute against the appellant. It is dismissed with costs.
Dated, signed and delivered at Kisii this 13th Day of November, 2009
A.O.MUCHELULE
JUDGE
13/11/2009
13/11/2009
Before A.O.Muchelule-J
Mongare court clerk
Mr. oguttu for Mr. Ocharo for Applicant
Mr. Odero for 2 nd Respondent
COURT: ruling in open court.
A.O.MUCHELULE
JUDGE
13/11/2009