[2005] KEHC 2435 (KLR)
The court found that while the applicant filed the application promptly, she failed to demonstrate what substantial loss she would suffer if stay was not granted and did not offer any security for the due performance of the decree. The applicant's counsel's submission that stay should be unconditional was rejected,...
Source-derived case information.
- Citation
- [2005] KEHC 2435 (KLR)
- Parties
- Appellant: Lucy Mwangi t/a Mwawaji Enterprises; Respondent: Dadaab Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 68 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Security for Due Performance, Interlocutory Judgment, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Mwangi t/a Mwawaji Enterprises
Appellant
Dadaab Investments Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 41 Rule 4.
- 2 Whether substantial loss would result to the applicant if stay is not granted.
- 3 Whether the applicant has offered security for due performance of the decree.
Ratio Decidendi
The court found that while the applicant filed the application promptly, she failed to demonstrate what substantial loss she would suffer if stay was not granted and did not offer any security for the due performance of the decree. The applicant's counsel's submission that stay should be unconditional was rejected, as the law requires security to be provided. Consequently, the application did not meet the mandatory requirements for the grant of stay of execution pending appeal and 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.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 68 of 2005
LUCY MWANGI T/A MWAWAJI ENTEPRISES ..….… APPELLANT
VERSUS
DADAAB INVESTMENTS LIMITED ………..……….. RESPONDENT
RULING
This is an application for stay of execution of the interlocutory judgment and/or decree entered against the Appellant by the lower court, pending the appeal filed herein. The Applicant also seeks stay of sale of the Appellant’s goods which have been attached pursuant to the decree of the lower court.
The application has been brought under Order 21 Rule 22 (1) which is clearly the wrong provision of the law. That Order applies where a temporary stay is sought before the court executing the decree which in this case is the lower court.
However, I presume the Applicant is before this Court under Order 41 Rule 4, and I will proceed to determine this application as if it was correctly before me under Order 41, Rule 4.
For the Applicant to succeed in this application he must demonstrate to the satisfaction of this Court that substantial loss will ensue if the Order is not granted; that he has filed this application without delay; and that he is willing and able to give such security as is ordered by the Court for the due performance of the decree. That is the plain reading of the Rule, and the onus is on the applicant to satisfy all the conditions through his deposition, and not through bold statements from the bar.
The Applicant’s promptitude in filing this application cannot be faulted. She did so within about three weeks of the delivery of the Ruling of the lower court.
As to substantial loss, the Applicant has not demonstrated what substantial loss, if any, she would suffer if an order of stay was not made. She has not explained how, for instance, she would not be able to recover the decretal sum if she were to succeed in the appeal.
And, finally, the Applicant must be willing to offer security for the due performance of the decree. No such offer has been made. In fact, Counsel for the Applicant submitted that stay should be “unconditional”. There is no such thing as “unconditional stay” under Order 41 Rule 4, and he has not persuaded this Court why stay should be “unconditional”.
Accordingly, this application must fail, and is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 16th day of June, 2005.
ALNASHIR VISRAM
JUDGE