[2007] KEHC 2197 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, as required by Order XLI Rule 4(2). The application was made 24 months after judgment, constituting unreasonable delay, which was not explained. Furthermore, the applicant failed to show that the...
Source-derived case information.
- Citation
- [2007] KEHC 2197 (KLR)
- Parties
- Plaintiff: James Mwangi Gichira; Defendant: James K. Mwaura & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 3204 of 1994
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Appeals Process, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Mwangi Gichira
Plaintiff
James K. Mwaura & Another
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 XLI Rule 4 of the Civil Procedure Rules.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant has demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, as required by Order XLI Rule 4(2). The application was made 24 months after judgment, constituting unreasonable delay, which was not explained. Furthermore, the applicant failed to show that the record of appeal was lodged or that essential steps in the appeal process were taken, as required by the Court of Appeal Rules. The cumulative failure to satisfy the mandatory conditions for stay of execution led the court to dismiss the application.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's Notice of Motion dated 23rd April 2007 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 3204 of 1994
JAMES MWANGI GICHIRA……………………………..PLAINTIFF
VERSUS
JAMES K. MWAURA & ANOTHER……………..…DEFENDANTS
RULING
This is the Defendant’s application brought under Order XLI Rule 4 (1) (2) of the Civil Procedure Rules and section 3A for the Civil Procedure Act seeking stay of execution of judgment and decree of this court delivered on 6th July 2005.
The application is based on the ground that judgment was delivered on 6th July 2005; that the Applicant being dissatisfied with the said judgment has lodged a Notice of appeal against the said judgment; that there is eminent likelihood that the Plaintiff could move to execute the said judgment against the Defendant/Applicant; that the applicant has a good and serious appeal with a high likelihood of success; that the appeal could be rendered nugatory should the Respondent move to execute the decree herein and that the Applicant is ready to abide by any condition or provide security as may be imposed by the court.
This application is brought under Order XLI Rule 4 (2) which provides:-
“2” No order of stay of execution shall be made under sub-rule(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.”
It is not clear from the affidavit evidence when the Notice of appeal was lodged and whether the Applicant has lodged the record of appeal. As much as the Applicant is ready to provide security as one of the conditions required under Order XLI Rule 4, he has not demonstrated their substantial loss that may result if the orders sought is not granted. The second condition is that the application must be made without unreasonable delay. The judgment was delivered on 6th July 2005 and this application is made after 24 months. This is unreasonable delay which is not explained. The Applicant is already barred by the provisions of Rule 81 (1) of the Rules of the Court of Appeal which requires that the record of appeal shall be lodged in the appropriate registry of the court within sixty days of the date when the Notice of Appeal was lodged. Under Rule 80 of the rules , an essential step in the proceedings has not been taken. In the result the Applicant’s application must fail. Consequently the Applicant’s Notice of Motion dated 23rd April 2007 is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 17th day of July 2007.
J.L.A. OSIEMO
JUDGE