[2006] KEHC 1677 (KLR)
The court found that although there was a five-month delay in filing the application for stay of execution, the delay was satisfactorily explained by the medical report showing that the appellant's counsel was incapacitated due to a road accident and only resumed duty shortly before the application was filed. The...
Source-derived case information.
- Citation
- [2006] KEHC 1677 (KLR)
- Parties
- Appellant: Garissa County Council; Respondent: Abdi Rahman Ali Aba Abass
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1091 of 2004
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Stay of execution granted on condition of deposit of security.
- Judges
- CM Kariuki
- Legal Topics
- Stay of Execution, Summary Judgment, Delay in Filing, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Garissa County Council
Appellant
Abdi Rahman Ali Aba Abass
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether the delay in filing the application for stay is excusable.
- 3 Whether the applicant has offered adequate security as required by law.
Ratio Decidendi
The court found that although there was a five-month delay in filing the application for stay of execution, the delay was satisfactorily explained by the medical report showing that the appellant's counsel was incapacitated due to a road accident and only resumed duty shortly before the application was filed. The applicant also offered security as required by Order 41 Rule 4 of the Civil Procedure Rules. The court was satisfied that the requirements for granting a stay of execution pending appeal were met and therefore granted the stay on condition that the appellant deposits the specified sum in court within 21 days.
Court Disposition
Stay of execution granted on condition of deposit of security.
Orders
- Stay of execution of the ruling dated 2/12/04 is granted on condition that the appellant deposits K.Shs.385,000/- in court within 21 days.
- Costs of this application to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 1091 of 2004
GARISSA COUNTY COUNCIL..…………...........................................................……………APPELLANT
VERSUS
ABDI RAHMAN ALI ABA ABASS…………...........................................................…….. RESPONDENT
R U L I N G
This application, dated 8/7/05, under Order 41 Rule 4 of the Civil Procedure Rules seeks stay of execution of the Ruling dated 2/12/04 pending the appeal herein. Then costs.
The application, which is supported by the Affidavit of Abdi Rabe, clerk to the appellant County Council, is on the grounds that the Ruling appealed against was a Summary Judgment in the face of a defence; that the Appellants Books of Account show that the Respondent was fully paid his allowances and simply want double payments.
In opposition, the Respondent avers, inter alia, that the applicant is guilty of inordinate delay; and the appeal stands no chance of success, and that no substantial loss has been shown by the applicant.
I have perused through the pleadings and submissions by Learned Counsel for both sides, and I have reached the following findings and conclusions.
The applicant meets all the tenets of Order 41, Rule 4, of the provisions under which the application is brought. There is a five month’s delay in filing the application after the Ruling. But that is well explained by the Medical Report, enclosed, which shows that the Appellant’s Counsel had been in a Road Accident on 18/1/05 and only resumed duty on 1/7/05. The application could therefore not have been filed or canvassed earlier. The applicant has also offered security as required by Order 41 Rule 4 of the Civil Procedure Rules.
Accordingly, I rule as under:
1. Grant stay of execution of the application herein, on condition that the appellant/applicant, deposits in this court, K.Shs.385,000/- within 21 days from today.
2. It is also ordered that the costs of this application abide the appeal.
DATED and delivered in Nairobi, this 18th Day of July, 2006.
O.K. MUTUNGI
JUDGE