[2008] KEHC 271 (KLR)
The court found that the applicant failed to demonstrate substantial loss, which is a mandatory requirement for the grant of stay of execution under Order XLI Rule 4(2) of the Civil Procedure Rules. The applicant's affidavit did not provide evidence or argument as to what substantial loss would be suffered if the...
Source-derived case information.
- Citation
- [2008] KEHC 271 (KLR)
- Parties
- Applicant: John Mwangangi; Respondent: Rose Ndileve
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 85 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangangi
Applicant
Rose Ndileve
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss as required for grant of stay of execution pending appeal.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether security for due performance has been addressed by the applicant.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss, which is a mandatory requirement for the grant of stay of execution under Order XLI Rule 4(2) of the Civil Procedure Rules. The applicant's affidavit did not provide evidence or argument as to what substantial loss would be suffered if the stay was not granted. The court also noted that the applicant had previously been allowed to pay the decretal sum in instalments, and seeking a blanket stay after such an arrangement was made amounted to bad faith. Consequently, the application for stay of execution was dismissed for lack of merit and failure to satisfy the legal requirements.
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
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC. APPLI. 85 OF 2006
JOHN MWANGANGI ………………………………………………… APPLICANT
VERSUS
ROSE NDILEVE ……….…………………………………….…… RESPONDENT
RULING
1. The Application dated 28/6/2006 is a Notice of Motion under Order XLIX Rule 5 of the Civil Procedure Rules and Section 75 and Section 79 G of the Civil Procedure Rules. The only substantive prayer left to address is prayer 3 thereof in which the Applicant seeks an order of stay of execution pending the hearing of the Appeal herein.
2. A party seeking such an order needs to appreciate that although discretion under Order XLI Rule 4 is wide, it is fettered by Rule 4 (2) thereof which provides as follows:-
“4 (2). No order of stay of execution shall be made under subrule (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.”
3. In his Supporting Affidavit sworn on 28/6/2006, the Applicant only says at paragraph 10 thereof that he will “suffer a lot of injustice unless this court grants the prayers sought” and at paragraph 12 that the Respondent “can take out execution proceedings any time.” No comment whatsoever is made as to what substantial loss he may suffer unless the order is made and I wholly agree with the Respondent in his Replying Affidavit sworn on 15/8/2008 that not one sufficient ground has been advanced to warrant grant of the Application and specifically the orders of stay of execution which is what presently in issue. I say this because substantial loss has often been said to be the cornerstone of any application for stay of execution and without that issue being properly proved in evidence, then the whole application will fail even if it was brought timeously – See – New Stanley Hotel Ltd vs Arcade Tobacconists Ltd (1986) KLR 757.
4. One other thing has to be said about the Application; the Applicant had previously applied and was granted an order to liquidate the decretal sum in monthly instalments of Kshs.5,000/=. It is in utmost bad faith to lead the Respondent down that path then turn round and seek a blanket order of stay of execution. If I made an order of deposit of security it would certainly prejudice the Respondent and without justification.
5. I see no reason whatsoever for granting the orders sought and will instead dismiss the Application with costs.
6. Orders accordingly.
Dated and delivered at Machakos this 11thday of November2008.
ISAAC LENAOLA
JUDGE
In presence of: Mrs Mutua for Applicant
Mr Musyoka h/b for Mr Mung’atta for Respondent
ISAAC LENAOLA
JUDGE