[2010] KEHC 3290 (KLR)
The court found that the application for stay of execution was filed approximately eight months after the judgment, with no explanation for the delay. Such inordinate delay is not acceptable for the grant of stay. Furthermore, the court relied on binding precedent that a stay of execution should not be granted where...
Source-derived case information.
- Citation
- [2010] KEHC 3290 (KLR)
- Parties
- Appellant: John Odhiambo; Respondent: Sospeter Otieno
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 78 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Costs Orders, Substantial Loss, Delay in Filing, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Odhiambo
Appellant
Sospeter Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal where the order under execution is for costs only.
- 2 Whether the delay of about 8 months in filing the application for stay is justifiable.
- 3 Whether the applicant has demonstrated substantial loss as required for grant of stay.
Ratio Decidendi
The court found that the application for stay of execution was filed approximately eight months after the judgment, with no explanation for the delay. Such inordinate delay is not acceptable for the grant of stay. Furthermore, the court relied on binding precedent that a stay of execution should not be granted where the order under execution is for costs only, as any costs paid can be refunded if the appeal succeeds. The applicant failed to demonstrate substantial loss, a key requirement for the grant of stay. Consequently, the application for stay was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
CIVIL APPEAL 78 OF 2009
JOHN ODHIAMBO……………………………….APPELLANT/APPLICANT
-VERSUS-
SOSPETER OTIENO…………………………………………RESPONDENT
RULING
The respondent appears to be executing for costs of Kshs. 37,505/= and has instructed Homeland Services (Auctioneers) who have attached the applicant’s household goods and livestock. The application has been brought underOrder 41 rule 4 of the Civil Procedure rules and sections 3A and 63(e) of the CivilProcedure Actfor stay of that execution. It was served but there was no response.
The application herein was filed on 9/11/2009, judgment that is being appealed for having been entered on 25/3/2009. There was no explanation for that delay. An unexplained delay of about 8 months is inordinate for the purpose of stay of this application.
Secondly, in the Court of Appeal decision inFrancis Kabaa.V.Nancy Wambui and Another Civil Application no. 298 of 1996at Nairobiit was held that where what is sought to be stayed is an order for costs, the same cannot be granted as the appellant, if he succeeds in his appeal, would be refunded his costs. The requirement to show substantial loss has therefore not been discharged by the appellant.
The application is ordered dismissed.
Dated, signed and delivered at Kisii this 1st day of February, 2010.
A.O.MUCHELULE
JUDGE
1/2/2010
Before A.O.Muchelule-J
Mr. Odero for applicant
COURT:Ruling in open court.
A.O.MUCHELULE
JUDGE
1/2/2010