[2015] KEHC 3164 (KLR)
The court found that the applicant failed to demonstrate how the appeal would be rendered nugatory or what substantial loss would be suffered if the stay was not granted. The applicant also failed to offer any security for the performance of the decree as required by Order 42 Rule 6 of the Civil Procedure Rules. The...
Source-derived case information.
- Citation
- [2015] KEHC 3164 (KLR)
- Parties
- Plaintiff: John Simiyu Ndalila; Defendant: Francis Soita Matumbayi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 26 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Appeals, Substantial Loss, Security for Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Simiyu Ndalila
Plaintiff
Francis Soita Matumbayi
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the applicant has offered security for the performance of the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate how the appeal would be rendered nugatory or what substantial loss would be suffered if the stay was not granted. The applicant also failed to offer any security for the performance of the decree as required by Order 42 Rule 6 of the Civil Procedure Rules. The court was not convinced that the application met the threshold for grant of stay of execution pending appeal and therefore dismissed the application with costs.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND CASE NO. 26 OF 2013
(FORMER HCC 52 OF 2012)
JOHN SIMIYU NDALILA ………………………………PLAINTIFF
VERSUS
FRANCIS SOITA MATUMBAYI ……….………….…DEFENDANT
RULING
[1] The applicant has filed this Notice of Motion praying that there be a stay of execution or further execution of the court’s judgment handed down on 8/12/2014.
[2] The reason advanced is that the applicant has filed an appeal to the Court of Appeal No. Civil Appeal No. ELD 29 of 2014. He argues that the appeal has high chances of success and that if the stay is not granted, the appeal shall be rendered nugatory. The respondent filed a Replying Affidavit and opposed the application. He argues the application is non meritorious, frivolous and defective. He argues that the applicant has not demonstrated the irreparable damages he will suffer if stay is not granted pursuant to the dictates in Giella Vs Cassman Brown(1973) EA. He prays for the application to be dismissed with costs.
I have read the submissions of the parties herein. The applicant has not proved to me how the appeal to the Court of Appeal shall be rendered nugatory. I was not shown in any way what substantial loss the applicant may suffer if a stay is not granted.
Under Order 42 Rule 6(1) the mere filling of an appeal does not operate as a stay of execution. The applicant herein offered no security for the performance of the decree herein.
All in all I am not convinced that the application herein should be granted.
I accordingly dismiss the same with costs.
DATED at BUNGOMA this27thday ofMay,2015
S. MUKUNYA
JUDGE