[2012] KEHC 1192 (KLR)
The court found that the appellant failed to demonstrate substantial loss as required under Order 42 rule 6(2) of the Civil Procedure Rules. The supporting affidavit and submissions did not present any new material or evidence different from the previous application, which had already been dismissed. The court...
Source-derived case information.
- Citation
- [2012] KEHC 1192 (KLR)
- Parties
- Appellant: Gateway Insurance Company; Defendant: Anderson Nzaro Mwatete
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 37 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay
- Outcome
- application dismissed
- Judges
- CW Meoli
- Legal Topics
- Stay of Execution, Order 42 Rule 6, Substantial Loss, Affidavit Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gateway Insurance Company
Appellant
Anderson Nzaro Mwatete
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay
Legal Issues
- 1 Whether the appellant demonstrated substantial loss as required under Order 42 rule 6(2) to warrant a stay of execution.
- 2 Whether an advocate can properly swear an affidavit on behalf of a party.
Ratio Decidendi
The court found that the appellant failed to demonstrate substantial loss as required under Order 42 rule 6(2) of the Civil Procedure Rules. The supporting affidavit and submissions did not present any new material or evidence different from the previous application, which had already been dismissed. The court adopted its earlier reasoning and dismissed the application for stay. Additionally, the court held that it was irregular for the respondent's counsel to swear an affidavit on behalf of the respondent, and therefore declined to award costs to the respondent.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Malindi
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GATEWAY INSURANCE COMPANY................................................................................APPELLANT/PLAINTIFF
VERSUS
ANDERSON NZARO MWATETE.........................................................................................................DEFENDANT
R U L I N G
The application made on 12th July, 2012 by the appellant is brought under the same provisions and factual basis as the appellants previous application filed on 14th September, 2011. I dismissed the said application on 5th July, 2012, on grounds inter alia that it did not come within the purview of Order 42 rule 6(2) especially with regard to a demonstration of likely substantial loss to be suffered by the appellant. Having gone through the affidavit in support of the present application and the submissions, I am unable to find that the material is any different; no substantial loss has been demonstrated by the appellant. I would adopt my ruling of 5th July, 2012 and therefore dismiss the instant applications.
Again, I must state that it is irregular for counsel for the respondent, Wangari Mwangi to purport to swear an affidavit on behalf of the respondent. For this reason, I will not award costs to the respondent.
Delivered and signed at Malindi this7th day of November, 2012in the presence of Ms. Njebiu for the appellant. Court clerk – Evans.
C. W. Meoli
JUDGE
7th November, 2012