[2001] KEHC 115 (KLR)
The court found that the applicant had not demonstrated sufficient cause or substantial loss that would result if stay of execution was not granted. The existence of an undetermined counter claim did not, in itself, constitute an arguable appeal or justify a stay, as the applicant was still at liberty to prosecute...
Source-derived case information.
- Citation
- [2001] KEHC 115 (KLR)
- Parties
- Applicant: Forest Products (K) Limited; Respondent: Kenya Clay Products Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1358 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JK Mulwa
- Legal Topics
- Stay of Execution, Counter Claims, Substantial Loss, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Forest Products (K) Limited
Applicant
Kenya Clay Products Limited
Respondent
Procedural Posture
Miscellaneous 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 lower court judgment pending appeal.
- 2 Whether the existence of an undetermined counter claim constitutes sufficient cause for stay of execution.
- 3 Whether the applicant has demonstrated that it will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant had not demonstrated sufficient cause or substantial loss that would result if stay of execution was not granted. The existence of an undetermined counter claim did not, in itself, constitute an arguable appeal or justify a stay, as the applicant was still at liberty to prosecute the counter claim independently. Furthermore, the applicant failed to show that the respondent would be unable to repay the decretal sum should the appeal succeed. Consequently, the application for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPLICATION NO.1358 OF 2000
FOREST PRODUCTS (K) LIMITED…………………….APPLICANT
VERSUS
KENYA CLAY PRODUCTS LIMITED…………………RESPONDENT
RULING
By a Notice of Motion dated 19th December, 2000, the Applicant is seeking Stay of Execution of the Judgment of the lower court dated 19th October, 2000.
This application is based on the grounds that the Learned Magistrate did not consider the counter claim filed by the Defendant when she entered judgment for the plaintiff. The applicant intends to appeal against the judgment and says that it has an arguable appeal and if the application for Stay of the Execution is not granted the applicant shall suffer substantial loss and consequently the result of the appeal shall be rendered nugatory. The application is opposed on the grounds that the counter claim was not dismissed and therefore the applicant is at liberty to press its claim by having the counter claim heard.
The applicant accepts that its claim in the lower court in the counter claim was not struck out and therefore can still be prosecuted. A counter claim is after all a claim on its own. The fact of the counter claim appears to form the main ground of the intended appeal. I would not consider this as an arguable appeal since the applicant has not yet prosecuted his counter claim. For a Stay of Execution to be granted the applicant must show sufficient cause and that it would suffer substantial loss if the application is not granted.
Having considered the reasons advanced in support of this application I find that the applicant has not shown it will suffer any loss. Besides, the applicant has not shown that the Respondent would not be in a position to repay this money if the appeal succeeds. I do not consider the application as meriting granting any further consideration and I dismiss it with costs to the Respondent.
Dated and delivered this 30th day of January, 2001.
KASANGA MULWA
JUDGE