[2019] KEELC 4859 (KLR)
The court found that while the applicant had filed a notice of appeal promptly and the application for stay was made without unreasonable delay, the applicant failed to provide evidence of substantial loss that would result if the stay was not granted. Furthermore, the applicant did not offer any security for the...
Source-derived case information.
- Citation
- [2019] KEELC 4859 (KLR)
- Parties
- Plaintiff: Mary Wangare Gichuki; Defendant: John Kiarie Gichuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 160 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wangare Gichuki
Plaintiff
John Kiarie Gichuki
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether there is a valid appeal in place justifying a stay of execution.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that while the applicant had filed a notice of appeal promptly and the application for stay was made without unreasonable delay, the applicant failed to provide evidence of substantial loss that would result if the stay was not granted. Furthermore, the applicant did not offer any security for the due performance of the decree as required by Order 42 Rule 6(2) of the Civil Procedure Rules. The absence of these critical elements rendered the application for stay of execution without merit, leading to its dismissal with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 9/10/2018 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 160 OF 2006
MARY WANGARE GICHUKI........................................PLAINTIFF
VERSUS
JOHN KIARIE GICHUKI............................................DEFENDANT
RULING
1. Judgment was delivered in this suit in favour of the plaintiff on the 24th September 2018. In the application filed on 9/10/2018 the defendant sought an order of stay of execution pending appeal on the grounds that the appeal shall be rendered nugatory should he be evicted and that he has a good appeal with a high probability of success.
2. Order 42 rule 6(2) of Civil Procedure Rules provides as follows:-
“(2) No order for stay of execution shall be made under sub rule 1) unless -
(a) 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; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.
3. The questions that arise from the application are whether there is an appeal, whether the application has been made without delay and whether substantial loss would result if the order of stay sought was not granted. Finally the court is to consider if there is any security offered for the due performance of the decree.
4. I am satisfied that there is a notice of appeal in place, it having been filed three days after the judgment on 27th September 2018.
5. The application was filed on 9/10/2018 and I find that to be sufficiently expeditious action on the part of the applicant.
6. However no evidence of probable loss is exhibited by the applicant. I would have expected his supporting affidavit to be more detailed in this regard. It is not. The application must fail on this ground.
7. I have also noted that the issue of security has not been addressed by the applicant in that none has been offered.
8. The application dated9/10/2018has no merit and it is hereby dismissed with costs to the respondent.
Dated, signed and delivered at Kitale on this 28th day of January, 2019.
MWANGI NJOROGE
JUDGE
28/01/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Ms. Wanjala holding brief for Kraido for plaintiff
Mr. Karani holding brief for Munialo for applicant
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
28/01/2019