[2005] KEHC 2044 (KLR)
The court found that while the initial affidavit in support of the application did not satisfy the mandatory requirements for stay of execution—namely, demonstration of substantial loss and offer of security—the further affidavit sufficiently addressed these issues. The court determined that a just security in the...
Source-derived case information.
- Citation
- [2005] KEHC 2044 (KLR)
- Parties
- Appellant: Francis Ngige Nyoike; Respondent: Mathew Ngige Macharia; Respondent: Monicah Njeri Kimemia; Respondent: Charles N. Mwaura T/A Melody Traders
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 144 of 2005
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- conditional stay of execution granted
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Public Auction Property, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ngige Nyoike
Appellant
Mathew Ngige Macharia
Respondent
Monicah Njeri Kimemia
Respondent
Charles N. Mwaura T/A Melody Traders
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay was filed without unreasonable delay.
- 3 Whether the applicant is willing and able to provide security for due performance of the decree.
Ratio Decidendi
The court found that while the initial affidavit in support of the application did not satisfy the mandatory requirements for stay of execution—namely, demonstration of substantial loss and offer of security—the further affidavit sufficiently addressed these issues. The court determined that a just security in the circumstances would be a sum representing the market rent of the premises, calculated at a median rate between the parties' valuations. The court therefore granted a conditional stay of execution, requiring the appellant to deposit a lump sum for past rent and to continue monthly payments into court until the appeal is determined. Failure to comply would result in the lapse of...
Court Disposition
conditional stay of execution granted
Orders
- Stay of execution pending appeal granted on condition that the appellant deposits Kshs.160,000 in court within 21 days, representing rent from 1st December 2004 to 30th July 2005.
- Appellant to pay Kshs.20,000 per month into court commencing 1st August 2005 until final determination of the matter.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 144 of 2005
FRANCIS NGIGE NYOIKE …………………...……..……… APPELLANT
VERSUS
MATHEW NGIGE MACHARIA …………..……….… 1ST RESPONDENT
MONICAH NJERI KIMEMIA …………………….…. 2ND RESPONDENT
CHARLES N. MWAURA
T/A MELODY TRADERS ………….……….………… 3RD RESPONDENT
RULING
This is an application for stay of execution pending appeal, under Order 41 Rule 4 of the Civil Procedure Rules.
At the centre of the dispute is a property known as Block 9/510/Thika Municipality which is presently owned by the Respondent, who acquired the same in a public auction. The Appellant is its previous owner. He claims that the Respondent acquired it fraudulently. The Respondent obtained orders of possession and eviction in the lower court, which are the subject of this appeal. The Appellant wants a stay of execution of those orders pending appeal.
For the Applicant to succeed in this application he must demonstrate to the satisfaction of this Court that substantial loss will ensue if the Order is not granted; that he has filed this application without delay; and that he is willing and able to give such security as is ordered by the Court for the due performance of the decree. That is the plain reading of Order 41 Rule 4, and the onus is on the applicant to satisfy all the conditions through his deposition, and not through bold statements from the bar.
Ordinarily, if I had to base my decision on the affidavit in support of the application dated 30th March, 2005, sworn by the Applicant, I would not grant the orders sought, as there is no evidence of substantial loss, and no offer of security. These are mandatory pre-conditions before such orders are granted. However, the further affidavit sworn by the applicant on 29th April, 2005 makes sufficient averments as to substantial loss, and offer of security. The security that I believe is just in the circumstances of this case is a reasonable sum representing the market rent in respect of the premises, that eventually the successful party would be entitled to. Both parties have filed written submissions regarding the market rent. The Appellant’s valuers say it is Kshs.16,000/= per month while the Respondent’s valuers assess it at Kshs.24,000/=. I will take the median rate of Kshs.20,000/= per month commencing 1st December, 2004.
Accordingly, I grant stay of execution pending appeal on condition that the Appellant shall deposit in this Court the sum of Kshs.160,000/= being the rent for the period 1st December, 2004 to 30th July, 2005, within the next 21 days. Thereafter, the Appellant shall pay into Court the sum of Kshs.20,000/= each month commencing 1st August, 2005 until this matter is finally determined. In default, this Order shall lapse. Those shall be the Orders of this Court.
Dated and delivered at Nairobi this 13th day of July, 2005.
ALNASHIR VISRAM
JUDGE