[2007] KEHC 3438 (KLR)
The court found that the applicant delayed unreasonably in bringing the application for stay of execution, as he did not apply immediately after judgment and only did so after appointing a new advocate. The time for filing an appeal had already lapsed, and the applicant failed to demonstrate any substantial loss...
Source-derived case information.
- Citation
- [2007] KEHC 3438 (KLR)
- Parties
- Applicant: Kibita Kibotho; Respondent: Elias Njagi Njoka; Respondent: Philis Micere Kibuta
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 65 of 1997
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Delay in Filing, Security for Stay, Registration of Title, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kibita Kibotho
Applicant
Elias Njagi Njoka
Respondent
Philis Micere Kibuta
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the application for stay of execution was filed without unreasonable delay.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the applicant has offered adequate security as required by law.
Ratio Decidendi
The court found that the applicant delayed unreasonably in bringing the application for stay of execution, as he did not apply immediately after judgment and only did so after appointing a new advocate. The time for filing an appeal had already lapsed, and the applicant failed to demonstrate any substantial loss that would be suffered if the stay was not granted, especially since the registration of title in the respondent's name could be reversed if the appeal succeeded. Furthermore, the applicant did not offer any security as required by the rules. Consequently, the court held that the requirements for granting a stay of execution under Order 41 Rule 4 of the Civil Procedure Rules had...
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Case 65 of 1997
KIBITA KIBOTHO…………………………………………….PLAINTIFF
VERSUS
ELIAS NJAGI NJOKA…………………………….….1ST DEFENDANT
PHILIS MICERE KIBUTA……………………….…..2ND DEFENDANT
RULING
I have considered the submissions on both sides. The applicant seeks stay of Execution Order 41 Rule 4 (2) requires that the application should be filed without unreasonable delay. At the time of Judgment the Applicant had an advocate acting for him. Application for stay should have been made orally in court under rule 4 (3) or a formal application be made without delay. As it is the Applicant did not make any application until he had appointed another advocate. I find unreasonable delay. The court of Appeal rules has set the time within which to file appeal. That time is long past. It appears that no substantial loss is proved because it is said the applicant has now been chased out of the land.
I find no loss that would be suffered by the registration of title in the Respondent. In case of success of appeal the process can be reversed. On the issue of Security the rule is clear in all cases security must be given not necessarily in terms of money but value. The applicant is offering no security.
In view of the delay occasioned in bringing this application, I am not satisfied that the requirements under order 4 CPC have been complied with. I hereby dismiss the application with costs to the Respondents.
Dated this 5th October, 2007.
J. N. KHAMINWA
JUDGE