[2012] KEHC 743 (KLR)
The court found that the applicant failed to satisfy the mandatory requirements for a stay of execution under Order 42, rule 4(2) of the Civil Procedure Rules 2010. Specifically, the application for stay was filed over two months after the judgment, which the court deemed an unreasonable delay, and the applicant did...
Source-derived case information.
- Citation
- [2012] KEHC 743 (KLR)
- Parties
- Plaintiff: Francis Sirma Kios; Defendant: Kibore Sigilai Tele
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 151 of 2004
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- MJA Emukule
- Legal Topics
- Stay of Execution, Appeals Process, Security for Stay, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Sirma Kios
Plaintiff
Kibore Sigilai Tele
Defendant
Procedural Posture
Stay 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 judgment and decree pending appeal.
- 2 Whether the application for stay was made without undue delay.
- 3 Whether the applicant has offered adequate security as required by law.
Ratio Decidendi
The court found that the applicant failed to satisfy the mandatory requirements for a stay of execution under Order 42, rule 4(2) of the Civil Procedure Rules 2010. Specifically, the application for stay was filed over two months after the judgment, which the court deemed an unreasonable delay, and the applicant did not offer any security for the due performance of the decree. The court also held that it lacked jurisdiction to determine the validity of the Notice of Appeal under Rule 75 of the Court of Appeal Rules, as such matters are for the Court of Appeal. Consequently, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 23rd July 2012 and filed on 25th July 2012 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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FRANCIS SIRMA KIOS...........................................................................PLAINTIFF
VERSUS
KIBORE SIGILAI TELE........................................................................DEFENDANT
RULING
This Ruling concerns a Notice of Motion dated 23rd July 2012 and filed on 25th July 2012 in which the Applicant seeks a stay of the orders granted in my judgment delivered on 18th May 2012 and the decree therein issued on 12th July 2012.
The conditions for a stay of execution are outlined in Order 42, rule 4(1) and 4(2) of the Civil Procedure Rules 2010. Rule 4(1) provides that an appeal does not constitute a stay, and that the court which issued the orders being appealed against may grant a stay of execution of its judgment. Under rule 4(2) aforesaid an applicant seeking a stay of execution must demonstrate -
(a) that he would suffer substantial loss unless the orders are granted,
(b)that the application for stay has been brought without undue delay, and
(c) the applicant offers such security as the court may order to bind him in the event his appeal would be unsuccessful.
The Appellant has offered no security. The judgment herein was delivered on 18th May 2012. The Application for stay was made on 25th July 2012, over 2 months after the judgment. A delay of 2 months is not reasonable. The application was not made without undue delay.
Counsel for the Respondent raised a Preliminary Objection on a matter of law that the Notice of Appeal was defective on the ground that it did not comply with the requirements of Rule 75 of the Court of Appeal Rules. That is a matter this court does not have the jurisdiction to determine. It can only be properly raised in the Court of Appeal.
The Applicant has otherwise not demonstrated compliance with the requirements of Order 42, rule 4(2) of the Civil Procedure Rules 2010. The Application dated 23rd July 2012, and filed on 25th July 2012 is therefore dismissed with costs to the Respondent.
It is so ordered.
Dated, signed and delivered at Nakuru this 6th day of December, 2012
M.J. ANYARA EMUKULE
JUDGE