[2004] KEHC 642 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL APPEAL NO. 16 OF 2004

LOISE RUGURU KIMANI ………......………APPELLANT

VERSUS

NELSON NDEGE GATIMU ……………...RESPONDENT

RULING

1. The Applicant herein seeks orders that a stay of execution be granted under order XLI Rules 4 and 5 of the Civil Procedure Rules. The grounds as set out and of relevance are;

i) that the Applicants risks being evicted from the suit land.

ii) that the Applicant will suffer irreparable damage unless the orders sought are granted.

2. During submissions I asked Counsel to address himself to the express requirements of Order XLI Rule 5 (2). He stated that his client is a poor widow and cannot offer any security for the due performance of the decree but that if she was evicted, she would lose her livelihood and would be occasioned substantial loss. He argued in reply to submissions by Counsel for the Respondent that there was no delay in filing the instant Application.

3. A party seeking a stay of execution pending appeal must show that there would be substantial loss unless the orders are granted and that the Application for grant of such orders was made without unreasonable delay. Further and as a necessity, security for the due performance of the decree under challenge has been given.

The Applicant herein filed the instant Application under Certificate of Urgency on 3. 6.2004. The judgment now being appealed from was given on 16. 3.2004. No explanation whatsoever was given for the delay of more than two(2) months. That the Appeal itself was filed on 15. 4.2004 is no answer to the question why there was delay as regards the Application.

4. On the substantial loss to be suffered by the Applicant, it is true that the orders sought by the Respondent were granted in the lower court. I see also that the claim for damages for trespass, damage and loss of season crops as filed by the Applicant was dismissed. I am now told that she has no capacity to pay the sum adjudged as general damages but in passing, Counsel said that she was willing to abide by any order as regards security and wait to see if the Applicant would abide by the order. It is the Applicant who has the obligation to make the offer and this court then decides if it is a good security. To say, “I don’t have anything” is to shoot one’s case, as it were, in the foot.

5. I do not see that the conditional discretion under order XLI Rule 5 is exercisable in this case and sadly the Application must fail.

6. Accordingly, the Application dated 2. 6.2004 is hereby dismissed with costs.

Orders accordingly.

Dated and delivered in open court on this 17th day of November 2004.

I.LENAOLA

AG. JUDGE

Present: Miss Ndegwa for Respondent

Applicant present. Mr. Kiama for Applicant absent.

I.LENAOLA

AG. JUDGE