[2002] KEHC 881 (KLR)
The court found that the affidavit in support of the application for stay of execution was incompetent, as counsel could not swear to facts regarding the applicant's alleged substantial loss. Furthermore, the applicant failed to demonstrate, either in the affidavit or submissions, how substantial loss would be...
Source-derived case information.
- Citation
- [2002] KEHC 881 (KLR)
- Parties
- Appellant: John Tendener & Another; Respondent: Stephen Munga Muthira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 227 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Money Decree, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Tendener & Another
Appellant
Stephen Munga Muthira
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the affidavit in support of the application for stay of execution was competent.
- 2 Whether the applicant demonstrated substantial loss if stay is not granted.
- 3 Whether special circumstances exist to warrant stay of execution of a money decree.
Ratio Decidendi
The court found that the affidavit in support of the application for stay of execution was incompetent, as counsel could not swear to facts regarding the applicant's alleged substantial loss. Furthermore, the applicant failed to demonstrate, either in the affidavit or submissions, how substantial loss would be suffered if the stay was not granted, or that the decretal amount would be irrecoverable from the respondent should the appeal succeed. In the absence of special circumstances, the court held that the respondent should not be denied the enjoyment of the fruits of the judgment, and therefore dismissed the application for stay of execution.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
11 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 227 OF 2002
(From the Original Civil Suit PMCC 8 of 1998 of P.M’s Court at
Nyahururu
JOHN TENDENER & ANOTHER ……………….. APPELLANTS VERSUS STEPHEN MUNGA MUTHIRA …………………. RESPONDENT
R U L I N G
This application has no merit, counsel who purported to swear an affidavit in support thereof was not competent to do so as he could not swear to matters of fact as to the applicant suffering substantial loss if the application is not granted. Moreover, this affidavit and the submissions in court have not demonstrated how the applicant will suffer the alleged substantial loss or in what form it is, if the application is not granted.
At the same time there are no averments in the affidavit or even in the submissions that if the appeal succeeds the applicant would be unable to recover the decretal amount from the respondent. This is a money decree and unless special circumstances are given why it should not be executed, the applicant should not be denied the enjoyment of the fruits thereof.
I dismiss this application with costs.
Delivered this 10th day of July, 2002.
D.K.S AGANYANYA JUDGE