[2007] KEHC 2767 (KLR)
The court found that the applicant had demonstrated a likelihood of suffering substantial loss if the stay was not granted, as the subject matter was land and there was a risk of transfer or disposal to third parties. The application was made within a reasonable time, and the applicant had indicated willingness to...
Source-derived case information.
- Citation
- [2007] KEHC 2767 (KLR)
- Parties
- Appellant: John Meme; Respondent: Paglous Mwenda
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 107B of 2006
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Performance, Transfer of Land, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Meme
Appellant
Paglous Mwenda
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant had demonstrated a likelihood of suffering substantial loss if the stay was not granted, as the subject matter was land and there was a risk of transfer or disposal to third parties. The application was made within a reasonable time, and the applicant had indicated willingness to provide security. The absence of unreasonable delay and the risk of irreparable harm justified the grant of a stay of execution pending the hearing and determination of the appeal.
Court Disposition
Stay of execution granted pending appeal.
Orders
- There shall be a stay of execution of the decree and further orders herein pending the hearing and determination of this appeal.
- Costs to be in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 107B of 2006
JOHN MEME ……………………………………………… APPELLANT
VERSUS
PAGLOUS MWENDA ……………………….………… RESPONDENT
(Being an appeal from the Judgment of Resident Magistrate, Hon. D.Morara, in Maua PMCC No. No.60of 2006 on 20th September, 2006).
RULING
This application was argued exparte as there was no appearance or reply to it by the respondent who was duly served.
It seeks stay of execution in Maua CMCC No.60/2006. Petition of appeal has been filed challenging the decision of the subordinate court to strike out the applicant’s defence and the entering of judgment. Following these events, the respondent has filed an application directed to the Executive Officer of that court to sign transfer documents to effect the transfer of one acre of the applicants parcel of land to the respondent.
A stay will be ordered if the applicant demonstrates that he stands to suffer substantial loss if it is not granted. The dispute involves land. If the pending proceedings are not stayed and the suit land transferred to the respondent the applicant is likely to suffer substantially as the respondent may either dispose of the same to a third party or waste it.
The second consideration is whether the applicant has given undertaking as to security and finally the court must be satisfied that the application for stay has been brought without unreasonable delay.
The decision giving rise to this appeal was delivered on 20th September, 2006, that is one month later. In my view there has been no unreasonable delay.
For these reasons it is ordered that there shall be a stay of execution of the decree and further orders herein pending the hearing and determination of this appeal.
Costs to be in the appeal.
DATED AND DELIVERED AT MERU THIS 7th DAY OF May, 2007
W. OUKO
JUDGE