[2015] KEHC 3962 (KLR)
The court found that the applicant had not complied with the previous order requiring deposit of Kshs. 2,000,000 as security for stay of execution and had not provided persuasive grounds or evidence to justify varying or substituting the order. The application was filed over two weeks after the lapse of the...
Source-derived case information.
- Citation
- [2015] KEHC 3962 (KLR)
- Parties
- Appellant: John Maina Thiongo; Respondent: John Karuntimi Kiambati
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Security for Costs, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maina Thiongo
Appellant
John Karuntimi Kiambati
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should substitute the order to deposit Kshs. 2,000,000 with an unconditional stay of execution pending appeal.
- 2 Whether the applicant has demonstrated sufficient cause to warrant a stay of execution without compliance with the security condition.
- 3 Whether the respondent would be prejudiced by the grant of stay without deposit of security.
Ratio Decidendi
The court found that the applicant had not complied with the previous order requiring deposit of Kshs. 2,000,000 as security for stay of execution and had not provided persuasive grounds or evidence to justify varying or substituting the order. The application was filed over two weeks after the lapse of the stipulated period for compliance, and the supporting affidavit and grounds did not demonstrate sufficient cause. The court exercised its discretion to dismiss the application, holding that the interests of justice did not warrant granting the orders sought in the absence of compliance with the security condition.
Court Disposition
application dismissed
Orders
- The application dated 12th May, 2015 is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 13 OF 2015
JOHN MAINA THIONGO............................................................................APPELLANT
VERSUS
JOHN KARUNTIMI KIAMBATI.................................................................RESPONDENT
R U L I N G
This application is dated 12th May, 2015. It seeks the following orders:
THATthis honourable court do substitute the order to deposit Kshs. 2,000,000/= with an order for stay of execution on condition that this appeal is finalized within a given period of time.
THATin the alternative, this honourable court do make an order of stay of execution pending the hearing and final disposal of the proposed appeal to the Kenya Court of Appeal.
THATthis honourable court do make any other or other orders as would meet the interest of justice in this appeal.
It has the following grounds:
THATthe Appellant will suffer irreparable damages if eviction is carried out.
THATthe Appellant is unable to raise the Shs.2,000,000/= required as a condition for grant of stay orders.
THATthe respondent will not be unduly prejudiced if the orders sought are granted.
I gave a ruling in an application dated 24. 3.2015 where the applicant sought stay of execution and decree of the lower court dated 6. 3.2015. During the prosecution of that application the applicant's advocate intimated that the value of the applicant's claim was Kshs.20,000,000/=. My ruling allowed stay of execution subject to the applicant depositing a sum of Kshs.2,000,000/= as deposit for security within 14 days of 14. 4.2015, when I delivered my ruling. The stipulated period ended around 28th of April, 2015. Over 2 weeks or thereabouts after the lapse of the stipulated period, the applicant has filed this application.
I have carefully examined the supporting affidavit and the grounds on the face of the application. They do not persuade this court to allow the application. In the circumstances, it is dismissed with no order as to costs.
It is so ordered.
Delivered in Open Court at Meru this 13th day of May, 2015 in the presence of:
Cc. Daniel
Mutunga h/b B. G Kariuki for the Applicant
P. M. NJOROGE
JUDGE