[2012] KEHC 5217 (KLR)
The court found that the applicant had conceded there was no appeal pending and had not demonstrated that he would suffer substantial loss if the stay was not granted. The court also noted that the respondent would continue to suffer if the stay was granted. The application was found to be unmeritorious as the...
Source-derived case information.
- Citation
- [2012] KEHC 5217 (KLR)
- Parties
- Applicant: Joyce Penina Adhiambo; Respondent: Francis Ouma Ouko
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 547 of 2005
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Probate and Administration, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Penina Adhiambo
Applicant
Francis Ouma Ouko
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant would suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant had conceded there was no appeal pending and had not demonstrated that he would suffer substantial loss if the stay was not granted. The court also noted that the respondent would continue to suffer if the stay was granted. The application was found to be unmeritorious as the requirements for granting a stay under Order 42 Rule 6(2) of the Civil Procedure Rules had not been satisfied. Consequently, the application for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE MATER OF THE ESTATE OF: SAMUEL NDALO WAMBARE ……………..……………….DECEASED
AND
IN THE MATTER OF AN APPLICATION BY: JOYCE PENINA ADHIAMBO………………………PETITIONER
VERSUS
FRANCIS OUMA OUKO ………………………………………….................................……………..OBJECTOR
RULING
The applicants application filed on 27th January 2012 prays for the following orders:-
1. That this application be certified urgent and be heard ex-parte in the first instance.
2. That pending the hearing and determination of this application, there be stay of execution of the Decree herein.
3. That pending the hearing and determination of appeal filed by the applicant against the entire Judgment and Decree herein, there be a stay of the execution of the Decree.
4. That the costs of this application be in the cause.
The same is supported by the affidavit of Francis Ouma Ndalo. It is opposed by the respondent through her affidavit sworn on 10th February 2012.
The provisions in which the stay sought under Order 42 (6) are very clear, namely that unless
42 (6) (2) No Order of stay of execution shall be made under Sub Rule 1
(a)The court is satisfied that substituted loss may result to the application when 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 performances of such decree order as may ultimately be binding on him has been given by the applicant.
The applicant has first of all conceded that there is no appeal pending. He said that he shall still seek further directions from the Court of Appeal. Taking into consideration the circumstances surrounding this case and the litigation history it has had, I don’t find that the applicant shall suffer any loss in the event that stay is not granted. On the contrary it is the respondent who stands to continue suffering if stay is granted.
I do hold that the applicant’s application is unmeritorious and I dismiss the same with cost to the respondent.
Dated, signed and delivered at Kisumu this 29th of February 2012
H. K. CHEMITEI
JUDGE
In the presence of:
……………………………………………Advocate for Applicant
…………………………………………. Advocate for Respondent
HKC/aao