[2004] KEHC 1437 (KLR)
The court found that the applicant failed to satisfy any of the three mandatory conditions under Order 41 Rule 4 for grant of stay of execution pending appeal. There was no evidence of substantial loss, no explanation for the five-month delay in filing the application after the Memorandum of Appeal, and no offer of...
Source-derived case information.
- Citation
- [2004] KEHC 1437 (KLR)
- Parties
- Plaintiff: Hall Equitorial Limited; Defendant: Olympic Fruit Processors
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5400 of 1991
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- ARM Visram
- Legal Topics
- Stay of Execution, Order 41 Rule 4, Substantial Loss, Security for Due Performance, Delay in Filing
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hall Equitorial Limited
Plaintiff
Olympic Fruit Processors
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution under Order 41 Rule 4.
- 2 Whether there is proof of a pending appeal.
- 3 Whether the applicant has demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to satisfy any of the three mandatory conditions under Order 41 Rule 4 for grant of stay of execution pending appeal. There was no evidence of substantial loss, no explanation for the five-month delay in filing the application after the Memorandum of Appeal, and no offer of security for due performance. The court emphasized that the burden is on the applicant to demonstrate compliance with all requirements through affidavit evidence. As none of the conditions were met, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO 5400 OF 1991
HALL EQUITORIAL LIMITED ………….………………. PLAINTIFF
VERSUS
OLYMPIC FRUIT PROCESSORS ……………………… DEFENDANT
RULING
The application before me is for stay of execution pending appeal under Order 41 Rule 4. For stay to be granted there must be an appeal pending.
There is no proof that an appeal has been preferred against the decision of the Lower Court – none is annexed to the affidavit in support. Counsel for the applicant handed me the Memorandum of Appeal date stamped 2nd February, 2004, so I will give him the benefit of doubt and proceed with this application on the assumption that an appeal has been preferred.
For the applicant to succeed in an Order 41 Rule 4 application, he must demonstrate to the satisfaction of this Court that substantial loss will ensue if the Order is not granted; that the application has been filed without delay; and that he is willing and able to give such security as is ordered by the Court for the due performance of the decree. That is the plain reading of the Rule, and the onus is on the applicant to satisfy all the conditions through his deposition, and not through bold statements from the Bar.
Unfortunately, none of the above three conditions have been satisfied. The applicant has not shown how he will suffer substantial loss if stay is not granted. He has instead chosen to argue that he has an arguable case, and that his appeal will be rendered nugatory. He relies on a false guarantee, and argues that he is not liable under the guarantee, and that he is not a party to this suit.
At this stage I cannot go into the merits of the appeal. I need to be satisfied on substantial loss. However, there is no averment about substantial loss in the deposition.
Secondly, I note that the Memorandum of Appeal which Counsel handed over to me, was filed on 2nd February, 2004, while this application was filed on 21st July, 2004 – a delay of five months. The applicant has not explained the delay, and has therefore not satisfied the conditions in Order 41 Rule 4.
Finally, there is no offer of security at all. In fact, the Applicant is not willing to offer any security.
Accordingly, none of the conditions outlined in Order 41 Rule 4 have been satisfied and, therefore, this application for stay is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 22nd day of September, 2004.
ALNASHIR VISRAM
JUDGE