[2010] KEHC 2015 (KLR)
The court found that the application for stay of execution was filed one year and two months after the decree, constituting unreasonable delay. The supporting affidavit did not provide any evidence or allegation that the respondent would be unable to refund the decretal sum if the appeal succeeded, and the issue of...
Source-derived case information.
- Citation
- [2010] KEHC 2015 (KLR)
- Parties
- Appellant: Kyalo Mutavi; Respondent: Martin Mailu Makule
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 192 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Defamation Damages, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kyalo Mutavi
Appellant
Martin Mailu Makule
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution was made without unreasonable delay.
- 2 Whether the applicant demonstrated that substantial loss would result if stay was not granted.
- 3 Whether the applicant was prepared to provide security for due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was filed one year and two months after the decree, constituting unreasonable delay. The supporting affidavit did not provide any evidence or allegation that the respondent would be unable to refund the decretal sum if the appeal succeeded, and the issue of substantial loss was only raised in submissions, which do not constitute evidence. The amount in question was modest (KShs. 30,000), and no interest was awarded. Consequently, the court held that the appellant failed to satisfy the requirements for stay of execution under Order 41, rule 4(2) of the Civil Procedure Rules. The application 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 with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Appeal 192 of 2007
KYALO MUTAVI ..................................................... APPELLANT
VERSUS
MARTIN MAILU MAKULE ..................................... RESPONDENT
R U L I N G
The Appellant has applied by notice of motion dated14th November 2008for stay of execution of the decree of the lower court pending disposal of the appeal herein.The appeal is against that decree passed on20th September 2007. By the decree the Respondent, who is the grandfather of the Appellant, was awarded KShs. 30,000/00 as damages for defamation plus costs.The application is brought under Order 41, rule 4 of the Civil Procedure Rules (the Rules).The Respondent has opposed the application by replying affidavit filed on15th December 2008.
I have read the supporting and opposing affidavits.I have also given due consideration to the written submissions filed on behalf of the Appellant.No submissions, written or oral, were made on behalf of the Respondent.I note that the order for the application to be heard by way of written submissions was made in the absence of appearance for the Respondent, and there is no indication that he was served with the order.
By dint of sub-rule (2) of rule 4 aforesaid, no order for stay of execution may be made unless the court is satisfied that substantial loss may result to the applicant unless the order is made.It must also be demonstrated that the application has been made without unreasonable delay.Finally, the applicant must be prepared to give such security as the court may order for the due performance by him of such decree or order as may ultimately be binding on him.
As already seen, the decree herein was passed on20th September 2007. The present application was filed on14th November 2008, about one year and two months later.The Appellant had applied for and obtained before the lower court a conditional stay of execution.He was unable to meet the conditions imposed, all the more reason why he should have come to this court as soon as possible.
There is no explanation in the supporting affidavit why the present application was made one year and two months after the decree was passed.I find that the application has been made after unreasonable delay.
Regarding substantial loss, the supporting affidavit is totally silent.There is no allegation in it that the Respondent may be unable to refund the decretal sum if paid, in the event that the appeal succeeds.That allegation has only been raised in the submissions filed on behalf of the Appellant.Submissions are not evidence.There is no evidence of substantial loss placed before the court.
I also note that the sum awarded to the Respondent is fairly modest, only KShs. 30,000/00, with costs.No interest was awarded.So, the decretal sum will ultimately remain modest.
In the result I do not find any merit in the Appellant’s application for stay of execution.The same is hereby dismissed with costs to the Respondent.It is so ordered.
DATED AT MACHAKOS THIS 12TH DAY OF MAY 2010
H.P.G WAWERU
JUDGE
DELIVERED THIS 14TH DAY OF MAY 2010