[2013] KEHC 3126 (KLR)

[2013] KEHC 3126 (KLR)

The court found that the defendant failed to demonstrate substantial loss, as hardship from satisfying a decree does not constitute substantial loss, especially where the plaintiff is a man of means and can refund the decretal sum if the appeal succeeds. The defendant also failed to explain the unreasonable delay of over one year and four months in bringing the application for stay. The court noted that the value of the security offered was disputed, but did not make a determination on this point as the application failed on the first two grounds. Consequently, the application for stay of execution was dismissed with costs, and the interim stay was lifted.

Citation
[2013] KEHC 3126 (KLR)
Parties
Plaintiff: George Odinga Oraro; Defendant: Eric Gor Sungu
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
31 May 2013
Case Number
Civil Case 1250 of 2004
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Outcome
application dismissed
Judges
DW Mbuteti
Legal Topics
Stay of Execution, Security for Decree, Substantial Loss, Unreasonable Delay
Source Language
English
Civil Procedure Stay of Execution Security for Decree Substantial Loss Unreasonable Delay

Case Brief

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Parties

George Odinga Oraro

Plaintiff

Eric Gor Sungu

Defendant

Procedural Posture

Stay Application / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the defendant has demonstrated substantial loss that would result if stay of execution is not granted.
  2. 2 Whether the application for stay of execution was made without unreasonable delay.
  3. 3 Whether the security offered by the defendant is adequate for the due performance of the decree.

Ratio Decidendi

The court found that the defendant failed to demonstrate substantial loss, as hardship from satisfying a decree does not constitute substantial loss, especially where the plaintiff is a man of means and can refund the decretal sum if the appeal succeeds. The defendant also failed to explain the unreasonable delay of over one year and four months in bringing the application for stay. The court noted that the value of the security offered was disputed, but did not make a determination on this point as the application failed on the first two grounds. Consequently, the application for stay of execution was dismissed with costs, and the interim stay was lifted.

Court Disposition

application dismissed

Orders

  • The application for stay of execution is dismissed with costs.
  • The interim stay of execution is lifted.