[2009] KEHC 3384 (KLR)
The court found that the appellant failed to demonstrate any substantial loss that he was likely to suffer if the stay was not granted, which is a mandatory requirement under Order XLI Rule 4(2) of the Civil Procedure Rules. The court also noted the absence of security for due performance and agreed with the...
Source-derived case information.
- Citation
- [2009] KEHC 3384 (KLR)
- Parties
- Appellant: Joseph Mbote Karwenji; Respondent: Southern Credit Banking Corporation Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 644 of 2008
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Summary Judgment, Substantial Loss Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mbote Karwenji
Appellant
Southern Credit Banking Corporation Ltd
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated substantial loss as required for grant of stay of execution pending appeal.
- 2 Whether the application for stay was brought without inordinate delay.
- 3 Whether security for due performance has been provided.
Ratio Decidendi
The court found that the appellant failed to demonstrate any substantial loss that he was likely to suffer if the stay was not granted, which is a mandatory requirement under Order XLI Rule 4(2) of the Civil Procedure Rules. The court also noted the absence of security for due performance and agreed with the respondent that there was inordinate delay in bringing the application. Consequently, the application for stay of execution lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 644 of 2008
JOSEPH MBOTE KARWENJI………….……….APPELLANT
VERSUS
SOUTHERN CREDIT
BANKING CORPORATION LTD…….…….…RESPONDENT
R U L I N G
1. On 30th November, 2008, a ruling was delivered by an SRM in the Chief Magistrate’s Court at Milimani allowing an application for summary judgment brought by Southern Credit Banking Corporation (hereinafter referred to as the respondent), against Joseph Mbote Karwenji (hereinafter referred to as the appellant).
2. Being dissatisfied with that ruling the appellant has lodged an appeal in this court against that judgment. The appellant has now moved this court under Section 3A of the Civil Procedure Act and Order XLI Rule 4 of the Civil Procedure Rules for an order of stay of execution contending that unless the order is granted, his appeal which has good chances of success may be rendered nugatory. The appellant also claims that he will suffer substantial loss.
3. The respondent objects to the application contending that there has been unexplained inordinate delay in bringing the application. It is further contended that no security has been provided nor any substantial loss demonstrated.
4. Having considered this application, I cannot but agree with the respondent. The applicant has not demonstrated any substantial loss that he is likely to suffer. That is the main condition that the applicant had to comply with under Order XLI Rule 4(2) of the Civil Procedure rules. The application before me therefore has no substance and is accordingly dismissed.
Dated and delivered this 3rd day of June, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Bulle for the applicant
Advocate for the respondent absent
Erick – Court clerk