[1997] KEHC 48 (KLR)
The court found that the applicant, being in possession of the suit premises, would suffer substantial loss if stay was not granted, as refusal would lead to eviction and potentially render the intended appeal nugatory. The application for stay was filed without unreasonable delay, and the applicant offered to...
Source-derived case information.
- Citation
- [1997] KEHC 48 (KLR)
- Parties
- Plaintiff: KEMFRO (A) LTD; Defendant: Kabare Baragwi & Ngariama Co-op Society Ltd; Defendant: Edwin Njenga Muhoro t/a Edmun Enterprises; Defendant: Gichugu Housing Co-op Society Ltd; Defendant: Josiah Muchiri Kanake
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2069 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal granted, subject to provision of security.
- Legal Topics
- Stay of Execution, Status Quo Orders, Appeal Procedure, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KEMFRO (A) LTD
Plaintiff
Kabare Baragwi & Ngariama Co-op Society Ltd
Defendant
Edwin Njenga Muhoro t/a Edmun Enterprises
Defendant
Gichugu Housing Co-op Society Ltd
Defendant
Josiah Muchiri Kanake
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether substantial loss may result to the applicant if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant, being in possession of the suit premises, would suffer substantial loss if stay was not granted, as refusal would lead to eviction and potentially render the intended appeal nugatory. The application for stay was filed without unreasonable delay, and the applicant offered to provide security as required. The court was satisfied that the requirements of Order 41 Rule 4(2) of the Civil Procedure Rules were met. Accordingly, the court granted a stay of execution by preserving the status quo, conditional upon the applicant filing a bond of Kshs. 250,000 executed by an insurance company or sound financial institution within 30 days.
Court Disposition
Application for stay of execution pending appeal granted, subject to provision of security.
Orders
- Stay of execution granted by preserving the status quo as at 19th March, 1997 until further orders.
- Applicant to file a bond of Kshs. 250,000 executed by an insurance company or sound financial institution within 30 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 2069 OF 1996
KEMFRO (A) LTD..................................................…PLAINTIFF
VERSUS
KABARE BARAGWI & NGARIAMA
CO-OP SOCIETY LTD…………………………………..1ST DEFENDANT
EDWIN NJENGA MUHORO
T/A EDM;UN ENTERPRISES…………………………..2ND DEFENDANT
GICHUGU HOUSING CO-OP SOCIETY LTD…………3RD DEFENDANT
JOSIAH MUCHIRI KANAKE……………………………4TH DEFENDANT
R U L I N G
At the time the plaintiff’s application was filed on 19th August, 1996, the 4th defendant Josiah Muchiri Kanake, who is now the applicant, was not a party to the proceedings. He was however subsequently joined as a party.
The plaintiff’s said application succeeded vide the ruling of this court delivered on 19th March, 1997. As at that time the applicant herein (the fourth defendant) had taken possession of the suit premises. The impact of the success of the plaintiff’s application was, inter alia, to have it restituted to the suit premises as per prayer NO. 4 in the said application. That order directly affected the applicant herein.
There is now before me an application by way of Chamber Summons under Order 41 Rule 4 and order 21 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for orders that there be a stay of execution pending appeal; status quo obtaining on 19th March, 1997 be maintained until further orders and that costs be in the cause. The application is supported by an affidavit sworn by the applicant to which the learned counsel for the plaintiff has sworn and filed a replying affidavit and grounds of opposition. I also have the submissions of both counsel on record.
The applicant having filed a notice of appeal, an appeal to the Court of Appeal shall be deemed to have been filed (Order 41 Rule 4(4). However, that notwithstanding, the applicant has to satisfy the requirements of order 41 rule 4(2) in order to secure stay of execution. Rule 4(2) aforesaid provides as follows: “ (2) No order for stay of execution shall be made under sub-rule (1) unless-
(a) the court is satisfied that substantial loss may result to the applicant unless 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 performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
Among the authorities cited are H.C.C.C. No 2411 of 1990 Indar Singh Gill Limited –v- Njoroge Gichara C. APPLICATION NO. NAI 15 OF 1990 (UR) VISHRAM HALAI & ANOTHER –V- THORNTON & TURPIN (1963) LIMITED & CIVIL APPLICATION NO. NAI 129 OF 1995 (57/95 UR) N;YALS (Kenya) Limited –v- United Housing Estate Limited. I have gone through the said authorities and noted the principles enunciated therein. I also bear in mind C.A. NO. 160 of 1995 M/s Gusii Mwalimu Investment co. Ltd –v- M/s Mwalimu Hotel Kisii Ltd and C.A No. 186 of 1992- Kamau Mucuha –v- The Ripples Ltd which I addressed in my ruling of 19th march, 1997.
In my ruling aforesaid, I found that the distress was unlawful and that possession was equally unlawful. I believe I was right. However, the applicant has an undoubted right of appeal. This is not the last court. Further, it has been held in several authorities that a judge who feels no doubt in dismissing a claim to an interlocutory injunction may perfectly consistently with his decision recognize that his decision might be reversed and that the comparative effects of granting or refusing an injunction are such that it would be right to preserve the status quo pending appeal.
The applicant herein is in possession. The refusal to grant stay shall lead to his eviction. The premises may change hands and his power to possess the same removed beyond recall. In such a case, the intended appeal if successful will be rendered nugatory. Substantial loss may thereby occur. The application for sty was filed timeously.
In view of the foregoing I am inclined to grant the stay sought by preserving the status quo. The applicant however shall cause to be filed a bond of Kshs. 250,000/- executed by either an insurance company or a sound financial institution within 30 days hereof.
The costs of this application shall await the outcome of the appeal,. Orders accordingly.
Dated and delivered t Nairobi this 2nd day of July, 1997.
MBOGHOLI MSAGHA
JUDGE