[2001] KEHC 664 (KLR)
The court found that the applicants failed to provide any evidence to demonstrate that they would suffer substantial loss if the stay of execution was not granted. The affidavit in support of the application did not address the issue of substantial loss but was limited to the non-provision of certified copies of...
Source-derived case information.
- Citation
- [2001] KEHC 664 (KLR)
- Parties
- Plaintiff: Fina Bank Limited; Defendant: Jagdishbhai Chaturbhai Patel t/a Mwananchi Auto Paints & Hardware; Defendant: Charulatta J. Patel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1165 of 1999
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Stay of Execution, Appeal Procedure, Substantial Loss Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fina Bank Limited
Plaintiff
Jagdishbhai Chaturbhai Patel t/a Mwananchi Auto Paints & Hardware
Defendant
Charulatta J. Patel
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated substantial loss as required for grant of stay of execution pending appeal.
- 2 Whether the applicants have provided sufficient evidence to justify a stay of execution under Order XLI Rule 4 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicants failed to provide any evidence to demonstrate that they would suffer substantial loss if the stay of execution was not granted. The affidavit in support of the application did not address the issue of substantial loss but was limited to the non-provision of certified copies of proceedings and ruling. As a result, the court held that the applicants had not met the threshold required under Order XLI Rule 4 of the Civil Procedure Rules for the grant of a stay of execution. Consequently, the application for stay was dismissed with costs to the respondent.
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
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1165 OF 1999
FINA BANK LIMITED …………………………………..… PLAINTIFF VERSUS JAGDISHBHAI CHATURBHAI PATEL T/A MWANANCHI AUTO PAINTS & HARDWARE .… 1ST DEFENDANT CHARULATTA J. PATEL ………………………..… 2ND DEFENDANT
RULING
This is an application for stay of execution of a ruling made by this court on 18. 12. 2000 whereby judgment was entered in favour of the plaintiff against the defendants as prayed in the plaint. The applicants now say that they intend to appeal against the ruling to the Court of Appeal and a stay of execution should be granted because the intended appeal has very high chances of success; that they will suffer substantial loss if a stay is not granted and that the intended appeal shall be rendered nugatory if an order of stay of the ruling is not granted.
The affidavit in support of the application is sworn by Mr. Anil Joshi, the applicant’s advocate and confines itself to the issue of the provision of certified copies of proceedings and ruling regarding which he depones that the documents have so far not been supplied to him.
The application is opposed by the respondent, Fina bank Limited. This application is made under O. XLI Rule 4 of the Civil Procedure Rule. Under that Rule, no order of stay of execution shall be made unless the court is satisfied that substantial loss may result to the applicant, if the order is made. There is not a single piece of evidence tendered by the applicant to show that any such loss will result and clearly no basis has been established for the grant of the orders sought in the application. For that reason, the application must fail and is dismissed with costs.
Dated at Nairobi this 23rd day of March, 2001.
T. MBALUTO JUDGE