[2011] KEHC 4118 (KLR)
The court found that the applicant failed to demonstrate that it would suffer substantial loss if stay of execution was not granted. There was no evidence provided to show that the damages awarded by the lower court were exorbitant or beyond the applicant's ability to pay, nor was there any proof that the 1st...
Source-derived case information.
- Citation
- [2011] KEHC 4118 (KLR)
- Parties
- Appellant: Kenya Fluorspar Co. Ltd.; Respondent: William Mutua; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 118 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- J Karanja
- Legal Topics
- Stay of Execution, Substantial Loss, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Fluorspar Co. Ltd.
Appellant
William Mutua
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Appeal / 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 substantial loss will be suffered by the applicant if stay is not granted.
- 3 Whether the applicant has discharged the burden of proof regarding the respondent's ability to refund the decretal sum.
Ratio Decidendi
The court found that the applicant failed to demonstrate that it would suffer substantial loss if stay of execution was not granted. There was no evidence provided to show that the damages awarded by the lower court were exorbitant or beyond the applicant's ability to pay, nor was there any proof that the 1st respondent would be unable to refund the decretal sum if the appeal succeeded. The applicant did not discharge the burden of proof required to justify a stay of execution. Consequently, the application for stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
- Applicant granted temporary stay orders for a period of 14 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL APPEL NO. 118 OF 2010
KENYA FLOURSPAR CO. LTD. ………….........................................................................……….. APPELLANT
VERSUS
WILLIAM MUTUA ……………………...................................................................………… 1ST RESPONDENT
THE ATTORNEY GENERAL ……….......................................................................……….2ND RESPONDENT
R U L I N G
An appeal would ordinarily not operate as a stay of execution unless the applicant shows that he is bound to suffer substantial loss if stay is not granted. Substantial loss means more than just the mere loss of income and more so if the same is not exorbitant. We have not been told herein that the damages awarded by the lower court were exorbitant to the extent of being out of the applicant’s reach if half thereof is paid to the first respondent in the event that the appeal succeeds. Besides, there has been no demonstration by the applicant of the 1st respondent’s level of poverty such that he may be considered to be a person of straw. One who alleges is required to prove.
In sum this court does not see any good reason to have the orders made by the learned Resident Magistrate set aside. The present application is thus dismissed with costs.
J.R. KARANJA
JUDGE
8/2/2011
Mr. Songok; May I be granted temporary stay to comply.
Mr. Marube; No objection
Court; Applicant granted temporary stay orders for a period of 14 days.
J.R. KARANJA
JUDGE