[2010] KEHC 1814 (KLR)
The court found that the applicant failed to demonstrate that substantial loss would result if execution proceeded, as his assertion of irreparable loss due to unemployment was not substantiated with evidence. Additionally, the applicant did not offer any security for the due performance of the decree as required by...
Source-derived case information.
- Citation
- [2010] KEHC 1814 (KLR)
- Parties
- Plaintiff: George Abongo; Defendant: Kisumu Teachers Co-operative Savings and Credit Society Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 191 of 2010
- Procedural Posture
- Civil Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- Application for stay of execution dismissed; extension of time to appeal granted.
- Legal Topics
- Stay of Execution, Extension of Time to Appeal, Loan Recovery, Cooperative Societies, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Abongo
Plaintiff
Kisumu Teachers Co-operative Savings and Credit Society Ltd.
Defendant
Procedural Posture
Civil Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for stay of execution pending appeal.
- 2 Whether the applicant is entitled to an extension of time to file an appeal against the decision of the Co-operative Tribunal.
Ratio Decidendi
The court found that the applicant failed to demonstrate that substantial loss would result if execution proceeded, as his assertion of irreparable loss due to unemployment was not substantiated with evidence. Additionally, the applicant did not offer any security for the due performance of the decree as required by Order XLI Rule 4(2) of the Civil Procedure Rules. Consequently, the court held that the applicant had not satisfied the mandatory conditions for the grant of a stay of execution pending appeal. However, the court exercised its discretion to extend the period within which to file an appeal by 30 days from the date of the ruling, recognizing the applicant's right to seek...
Court Disposition
Application for stay of execution dismissed; extension of time to appeal granted.
Orders
- The period within which to file an appeal is extended for 30 days from the date of the ruling.
- Stay of execution is declined.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 191 of 2010
GEORGE ABONGO …………………………………….….. PLAINTIFF
VERSUS
KISUMU TEACHERS CO-OPERATIVE
SAVINGS AND CREDIT SOCIETY LTD. ……………... DEFENDANT
R U L I N G
The application before the Court seeks two main orders –
(a)That this honourable Court be pleased to issue a stay of execution of the decree of the Co-operative Tribunal dated 23rd June, 2009, pending the inter partes hearing of this application; and
(b)That this honourable Court be pleased to extend the 30 day period within which an appeal is allowed from the decision of the Co-operative Tribunal dated 19th January, 2010.
The application is brought by a Notice of Motion dated 12th March, 2010,pursuant to Section 81 of the Co-operative Societies Act, and Orders XLI Rule 4 (1)andL Rule 1of theCivil Procedure Rules.
The application is supported by the annexed affidavit of George Otieno Abongo whose case, in a nutshell, is that the Respondent filed a suit against him for the recovery of the sum of Kshs.3,299,994. 20 advanced to the Applicant by way of loans.On the date of the hearing of the suit, neither the Applicant nor his Advocate attended Court.The Tribunal thereupon entered judgment and issued a decree against the Applicant for the entire sum claimed.The Applicant followed this by filing an application before the Tribunal for stay of execution and the setting aside of the decree.The Tribunal was not satisfied that the Plaintiff had demonstrated that he had a good defence to the action as he had in fact admitted part of the debt and did not avail himself the opportunity to file an amended defence to the amended plaint despite being accorded an opportunity to do so.As a result, his application for stay was also dismissed.It is as a result of this dismissal that the Applicant has come to this Court seeking leave for an extension of time to file an appeal.
At the hearing of the application Mr. Kabugu appeared for the Applicant while Mr. Anyoka appeared for the Respondent.After considering the pleadings and the submissions of Counsel, I find that the main issue for determination is whether the Applicant has satisfied the conditions for stay of execution pending appeal.
Order XLI Rule 4 (1)of theCivil Procedure Rules allows this Court to grant stay of execution pending appeal for sufficient cause. I note from the defence filed before the Tribunal that the Applicant acknowledged owing part of the claim made by the Respondent and also expressed his willingness to repay the same if and when his conditions improved financially.But when the plaint was thereafter amended to include some additional loans, thereby revising upwards the amount claimed, the Applicant did not amend his defence to plead to the new figures although he was granted an opportunity to do so.
The exercise of the discretion conferred on the Court by subrule (1) is subject to Rule 4 (2) of the aforesaid Orderwhich states as follows -
“No order for stay of execution shall be made under subrule (1) unless –
(a)the Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
I note from the pleadings that all the Applicant states regarding his
suffering of any substantial loss is that if execution issues,he “will suffer irreparable loss as he is currently unemployed and has no stable source of income”.Beyond that, he does not show how that will come about.The Applicant has, therefore, failed to satisfy the Court that substantial loss will befall him unless execution is stayed.Furthermore, no security as the Court may order for the due performance of such decree or order as may be binding on him has been offered by the Applicant.Arising from the Applicant’s failure to comply with these conditions, I find that he has not satisfied the requirements for the grant of stay pending appeal.
I accordingly make the following orders -
(i) The period within which to file an appeal in this matter be
and is hereby extended for a period of 30 days from
today.
(ii) For the avoidance of any doubt, the Court declines to
grant stay of execution.
(iii) Costs of this application to abide the outcome of the
appeal.
Orders accordingly.
Dated and delivered atNairobithis 21st day of May, 2010.
L. NJAGI
JUDGE