[1998] KEHC 124 (KLR)
The court found that the applicant failed to provide evidence of substantial loss beyond the assertion that a large sum was payable. The mere fact of a monetary decree does not constitute substantial loss. Additionally, the application for stay was filed after an inordinate delay of over four months from the date of...
Source-derived case information.
- Citation
- [1998] KEHC 124 (KLR)
- Parties
- Plaintiff: Lake Turkana El Molo Lodges Loiyangalani Ltd; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1580 of 1991
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Substantial Loss, Judicial Discretion, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lake Turkana El Molo Lodges Loiyangalani Ltd
Plaintiff
Attorney General
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss that may result unless stay of execution is granted.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether the court should exercise its discretion to grant a stay of execution and on what terms.
Ratio Decidendi
The court found that the applicant failed to provide evidence of substantial loss beyond the assertion that a large sum was payable. The mere fact of a monetary decree does not constitute substantial loss. Additionally, the application for stay was filed after an inordinate delay of over four months from the date of judgment, which does not satisfy the requirement for promptness. However, recognizing the defendant's right of appeal and the need to balance the interests of both parties, the court exercised its discretion to grant a conditional stay of execution. The stay was granted on terms that the defendant pays the plaintiff approximately half of the decretal sum and half of the taxed...
Court Disposition
Conditional stay of execution granted.
Orders
- The defendants/applicants shall pay the plaintiff a sum of Kshs. 35,000,000 (thirty-five million shillings), approximately half of the decretal sum awarded.
- The said payment shall be effected within 14 days from the date hereof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1580 OF 1991
LAKE TURKANA EL MOLO LODGES
LOIYANGALANI LTD...............................................................PLAINTIFF
VERSUS
ATTORNEY GENERAL.......................................................DEFENDANT
R U L I N G
This is an application by way of Notice of Motion for an order that there be a stay of execution of the judgment delivered on 13th February, 1998 pending appeal. The application which is under Order 41 Rules 3&4 of the Civil Procedure Rules and section 75 of the Civil Procedure Act is supported by an affidavit of the learned counsel for the defendants. The learned counsel for the plaintiff has filed grounds of opposition and a replying affidavit.
The defendants have filed a Notice of Appeal and so under Order 41 Rule 4(4) the appeal is deemed to have been filed. An order for stay of execution shall not be made unless 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. The court may also order provision of security. (see O.41 R.4(2) (a) & (b). Paragraph 10 of the affidavit in support of the application reads as follows:-
“11. THAT the applicant will suffer subsantive loss as the applicant will pay a substantive sum of Kshs. 75,540,890. 10 plus interest”
Other than that statement the applicants have not provided any evidence of the alleged substantial loss. The amount of money payable to a successful litigant is not evidence of substantial loss. And so, the first condition has not been satisfied by the applicants. My reading of Rule 4(2) (a) would mean that even if substantial loss is shown may result, the applicant, the application has to be made without unreasonable delay.
The application dated 7th July, 1998 was filed on 31st July, 1998 well over four months from the date of delivery of the judgment. The applicants did not need the proceedings to lodge an application for stay. They did not move expeditiously and I find the delay inordinate.
The order sought by the applicants is discretionary which discretion has to be exercised judicially. The plaintiff has a monetary decree in its favour and is entitled to the fruits thereof. On the other hand, the defendants have an undoubted right of appeal but which is yet to be filed considering that they are already out of time. As justice has to look at both sides I am inclined to grant a stay of execution on the following terms.
(a) The defendants/applicants shall pay the plaintiff a sum of kshs. 35,000,000 (kshs.35 million) which is just about half of the decretal sum awarded.
(b) The said payment shall be effected within 14 days from the date hereof.
(c) The defendants/applicants shall also pay ½(half of the taxed costs to the plaintiff within the same period of 14 days from the date hereof.
(d) In default of the said payments execution proceedings shall continue.
(e) Costs in the cause.
Orders accordingly.
Dated at Nairobi this 10th day of December, 1998.
A. MBOGHOLI MSAGHA
JUDGE