[2008] KEHC 2081 (KLR)
The High Court held that it lacked jurisdiction to grant an order for stay of execution under Order XLI Rule 4 of the Civil Procedure Rules because no appeal had been filed before it. The court further found that the applicant had not demonstrated substantial loss as required by the rules, as the mere assertion that...
Source-derived case information.
- Citation
- [2008] KEHC 2081 (KLR)
- Parties
- Applicant: Industrial Commercial Development Corporation; Respondent: Elias M. Mategwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 399 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Jurisdiction of High Court, Substantial Loss, Security for Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Industrial Commercial Development Corporation
Applicant
Elias M. Mategwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a stay of execution where no appeal has been filed.
- 2 Whether the applicant has satisfied the conditions for grant of stay of execution under Order XLI Rule 4(2) of the Civil Procedure Rules.
- 3 Whether substantial loss will result to the applicant if the stay is not granted.
Ratio Decidendi
The High Court held that it lacked jurisdiction to grant an order for stay of execution under Order XLI Rule 4 of the Civil Procedure Rules because no appeal had been filed before it. The court further found that the applicant had not demonstrated substantial loss as required by the rules, as the mere assertion that the respondent may not be traceable if the decretal amount is released was insufficient. The court also noted that Order XLI Rule 4(6) was inapplicable since no order for injunction pending appeal was sought. Consequently, the application for stay of execution was dismissed for want of merit and lack of jurisdiction.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Appli. 399 of 2008
INDUSTRIAL COMMERCIAL
DEVEOPMENT CORPORATION………….….. APPLICANT
VERSUS
ELIAS M. MATEGWA…………….…………..RESPONDENT
R U L I N G
The applicant Industrial Commercial Development Corporation has come to this court under Order XLI Rule 4(1) & (2) of the Civil Procedure Rules seeking an order for stay of execution of the judgment issued in Milimani CMCC No.9547 of 2006 pending the hearing and determination of an intended appeal.
The applicant explains that it had lodged Civil Appeal No. 130 of 2008 and obtained temporary orders of stay of execution depositing the decretal amount into court as security. However, the appeal and application for stay of execution were struck out on 13th June, 2008 as the applicant’s advocates were not properly on record.
The applicant’s advocate thereafter moved to the lower court and regularized their appointment. The application for stay of execution filed in the lower court was however dismissed. It is now contended that the applicant will suffer substantial loss unless his current application is allowed as the intended appeal may be rendered nugatory. It is further contended that no prejudice will be occasioned to the respondent as the decretal amount is already deposited in court.
Counsel for the applicant submits that order XLI Rule 4(6) of the Civil Procedure Rules gives powers to the court to grant orders of injunction provided the process of instituting an appeal has been started. It was maintained that the applicant having annexed an application for proceedings which proceedings have not been provided they have shown that they are not able to get a certificate in accordance with Section 79G of the Civil Procedure Act. The case of Halai & Another vs Thornton & Turpin 1963 Ltd [1990] KLR 365 and International Laboratory for Research on Animal Diseases vs Kinyua [1990] KLR 403, were relied upon.
The application was opposed through a replying affidavit sworn by the respondent Elias M. Mategwa. It was submitted on behalf of the respondent that the application is misconceived as the court has no powers to grant orders for stay of execution pending appeal where no appeal has been filed. It was further submitted that of the three conditions for granting an order for stay of execution provided under Order XLI Rule 4(2) of the Civil Procedure Rules the applicant has only satisfied the condition for providing security. He has not however established any substantial loss that will result if the order for stay of execution is not granted. In this regard the case of Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another [1982 -88] I KAR 1018 was relied upon. It was further submitted that there was inordinate delay in bringing the application.
I have considered this application. Under Order XLI Rule 4 of the Civil Procedure Rules, an order for stay of execution pending appeal can only be granted either by the court from whose order the appeal emanates or by the court to which an appeal has been made. In this case, there is no appeal pending before this court and therefore this court has no jurisdiction under Order XLI Rule 4 of the Civil Procedure Rules to grant an order for stay of execution. Reference was made to Order XLI Rule 4(6) of the Civil Procedure Rules. However, that rule is not applicable herein as no order for an injunction pending appeal has been sought. It is not enough that the applicant may have applied for proceedings. A memorandum of appeal ought to have been filed in this court to give this court jurisdiction.
Secondly, the applicant has not satisfied this court that substantial loss will result to it unless an order for stay of execution is granted. A mere allegation that the applicant may not be able to trace the respondent if the decretal amount is released to him is not enough to establish substantial loss. For these reasons, I find no merit in this application. Accordingly, I dismiss it with costs.
Dated and delivered this 30th day of July, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Kiura for the Applicant
Keyonzo for the respondent