[2007] KEHC 1000 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would result if the stay was not granted. The security offered, being land, was not valued and was subject to other claims, making it insufficient for the purposes of Order 41 rule 4(2). The court was not convinced that the security...
Source-derived case information.
- Citation
- [2007] KEHC 1000 (KLR)
- Parties
- Applicant: Geoffrey Muthike Wamuyu; Respondent: Flavian Mwangi Omari
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 40 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Muthike Wamuyu
Applicant
Flavian Mwangi Omari
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the security offered by the applicant is sufficient under Order 41 rule 4(2).
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would result if the stay was not granted. The security offered, being land, was not valued and was subject to other claims, making it insufficient for the purposes of Order 41 rule 4(2). The court was not convinced that the security provided would ensure the due performance of the decree. Therefore, the court held that stay of execution would only be granted on the condition that the applicant deposits the total decretal amount in a joint interest-earning account operated by both parties' advocates within 45 days, failing which the order for stay would lapse.
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution is granted only on condition that the applicant deposits the total decretal amount in an account jointly operated by both parties' advocates in a reputable bank, interest-earning account, within 45 days.
- If the deposit is not made within 45 days, the order for stay shall lapse.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT EMBU
Misc Civil Appli 40 of 2007
GEOFFREY MUTHIKE WAMUYU……………………..…………….APPLICANT
VERSUS
FLAVIAN MWANGI OMARI……………………………….………RESPONDENT
RULING
The applicant prays for stay of the execution pending appeal already filed. He is offering security of land. He was ordered to pay decretal sum but he has failed to do so. The security offered is not valued.
Upon considering the submission of counsel on both sides and upon reading the application, I find no good reason to grant orders sought. Already stay has been granted by the Trial court and the applicant has failed to comply.
I find no substantial loss demonstrated by the applicant. The security he offers is subject to other claim. For security under Order 41 rule 4 (2) it is to provide tangible security that the Respondent can be able to get hold of for the due performance of such decree or order as may ultimately be landing on the applicant.
I am not convinced here that the security offered is sufficient for that purpose.
I order that stay shall only be ordered on condition that the applicant shall deposit the total decretal amount in an account to be jointly operated by the two advocates for both parties such account to be opened in reputable bank an interest earning account. The deposit shall be made within the next 45 days failing which this order shall lapse.
Dated this 26th July, 2007.
J. N. KHAMINWA
JUDGE