[2015] KEHC 2247 (KLR)
The court found that the appellant failed to demonstrate the kind of loss he would suffer if stay was not granted, merely averring irreparable loss without substantiation. The court held that the burden was on the appellant to provide facts showing substantial loss, which he failed to do. Consequently, the court did...
Source-derived case information.
- Citation
- [2015] KEHC 2247 (KLR)
- Parties
- Appellant: Fredrick Kithya Kitunga; Respondent: Christopher Mulwa Munguti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 228 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kithya Kitunga
Appellant
Christopher Mulwa Munguti
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the appellant demonstrated substantial loss if stay is not granted.
- 3 Whether the appellant provided adequate security for due performance of the decree.
Ratio Decidendi
The court found that the appellant failed to demonstrate the kind of loss he would suffer if stay was not granted, merely averring irreparable loss without substantiation. The court held that the burden was on the appellant to provide facts showing substantial loss, which he failed to do. Consequently, the court did not consider the issue of security for due performance, as the threshold for substantial loss was not met. The application for stay of execution was therefore dismissed for lack of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion dated 21.05.2015 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 228 OF 2015
FREDRICK KITHYA KITUNGA................APPELLANT
VERSUS
CHRISTOPHER MULWA MUNGUTI.................RESPONDENT
RULING
The Appellant herein took out the motion dated 21. 05. 2015 in which he
sought to be granted an order for stay of execution of the decree/judgment issued and or delivered on 29th April 2015 by Hon. M. Chesang, learned Senior Resident Magistrate vide Milimani C.M.C.C no. 7438 of 2008 pending appeal. The motion is supported by the affidavit of Christine Otieno. The Respondent filed grounds of opposition to resist the motion.
I have considered the grounds set out on the face of the motion plus the facts
deponed in the supporting affidavit. I have further considered the grounds of opposition filed by the Respondent. I have also considered the oral submissions of learned counsels. A critical examination of the motion will reveal that the Appellant is apprehensive that his assets may be attached in execution of the decree unless the order for stay is granted. He avers that he has an appeal with high chances of success. One of the grounds of appeal put forward is that the award is excessive and exorbitant. The Appellant further argues that he will suffer irreparable loss. The Respondent urged this court to reject the application because the same was filed to delay the expeditious disposal of the dispute. The Respondent accused the Appellant’s advocate of filing an affidavit in which she deponed on contentious matters. He is of the view that the Appellant may not have given the advocate authority to file this appeal. It is also pointed out that the motion does not meet the conditions required before granting an order for stay.
There is no doubt that the learned Senior Resident Magistrate delivered
judgment on 29. 4.2015 in which she gave an award which the appellant feels is excessive. The amount of the award is not mentioned by either side in this dispute. It is therefore difficult for this court to form an opinion as to whether or not the award is excessive. The Appellant was bound to bring out such facts but he failed to discharge the burden. The principles to be considered in deciding the application for stay are well settled. First, an Applicant must show that unless the order is given he would suffer substantial loss. On this principle, the Applicant merely averred that he would suffer irreparable loss. There was no description of the kind of loss the Applicant expected to be suffer so that this court can determine whether or not such a loss is substantial. Prima facie, I doubt whether the appeal has any chance to succeed.
The second principle to be considered is the provision for security for the due
performance of the decree. This principle kicks in when the first principle is satisfied. Since the Applicant did not meet the first principle, I am obliged not to take into account the provision of security.
In the end, I find no merit in the motion dated 21. 05. 2015. The same is
dismissed with cost to the Respondent.
Dated, Signed and Delivered in open court this 25th day of September, 2015.
J. K. SERGON
JUDGE
In the presence of:
............................for the Appellants.
........................... for the Respondent.