[2006] KEHC 2419 (KLR)
The court found that the appellant failed to demonstrate that it would suffer substantial loss if stay of execution was not granted, as the respondent had shown evidence of means to refund the decretal sum and this evidence was unchallenged. The court emphasized that the conditions under Order 41 Rule 4 must be...
Source-derived case information.
- Citation
- [2006] KEHC 2419 (KLR)
- Parties
- Appellant: Keshra Kanji & Sons Ltd; Respondent: Caroline Kanuthu Kaniu; Respondent: George Njuguna Gitau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 769 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Order 41 Rule 4, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Keshra Kanji & Sons Ltd
Appellant
Caroline Kanuthu Kaniu
Respondent
George Njuguna Gitau
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether the appellant will suffer substantial loss if stay is not granted.
- 3 Whether the respondent has demonstrated capacity to refund the decretal sum if the appeal succeeds.
Ratio Decidendi
The court found that the appellant failed to demonstrate that it would suffer substantial loss if stay of execution was not granted, as the respondent had shown evidence of means to refund the decretal sum and this evidence was unchallenged. The court emphasized that the conditions under Order 41 Rule 4 must be strictly met for a stay to issue, and that the right of a successful litigant to enjoy the fruits of judgment should not be withheld without sufficient cause. As the appellant did not meet the required threshold, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution pending appeal is dismissed.
- Costs awarded to the respondent against the applicant/appellant.
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 769 of 2005
KESHRA KANJI & SONS LTD…….…….............................................……….. PLAINTIFFS
VERSUS
CAROLINE KANUTHU KANIU
GEORGE NJUGUNA GITAU………..................................………………… RESPONDENT
R U L I N G
On 28/11/05, the appellant/applicant moved to this court, seeking: Stay of execution pending appeal; permission to deposit security, pending the appeal. The application is under Order 41 Rule 4 of the Civil Procedure Rules and is supported by an Affidavit by Joram Marenya and Kevin Mogeni, of even date, and on the following grounds: the appeal will be rendered nugatory if stay is not granted; the appellant will suffer substantial loss if execution is not stayed; appellant offers to provide such security as the court may deem just, including deposit in court of Insurance Bond, for due performance.
In opposition, the Respondent’s Replying Affidavit, dated 2/12/05, avers that she is well resourced to repay the decretal sum should the appeal succeed against her; and no substantial loss would be suffered by the appellant.
I have carefully gone through the pleadings and the submissions of counsel for both sides and have reached the following findings and conclusions: The stay application is under Order 41 rule 4 of the Civil Procedure Rules, wherein the requisite conditions are spelt out. Looking at hose conditions, execution will only be denied the Respondent if applicant/appellant satisfies this court that if the decretal sum is paid prior to the appeal, the same will have been put beyond the appellant’s reach because the Respondent is not a person of means to refund the money.
In the Respondent’s Replying affidavit, she has shown her income and assets, which have not been challenged at all by the appellant/applicant.
The fact or idea that this is a test case has not been established before me. I am only confined to the application before me, and the issues of other cases will be dealt with as, and when, they are brought forward to this court.
I hold that no substantial loss has been shown that appellant would suffer if the stay is not granted.
In an application of this nature, it must always be kept in mind that a successful litigant should not be kept away from enjoying the fruits of her successful litigation without good cause being shown. That is the genesis of the provisions of Order 41 Rule 4, especially Rule 4 (2) (a), which must be met for the stay of execution to issue.
Here, appellant has not met those tenets.
Accordingly, the application is dismissed, with costs to the Respondent, and against the applicant/appellant.
It is so ordered.
DATED and delivered in Nairobi this 30th Day of May, 2006.
O.K. MUTUNGI
JUDGE