[2007] KEHC 3528 (KLR)
The court found that the applicant would suffer substantial loss if forced to stop cultivating the land while challenging the injunction on appeal. The application for stay was brought without unreasonable delay, and the applicant demonstrated sufficient cause for granting the stay. The court held that the applicant...
Source-derived case information.
- Citation
- [2007] KEHC 3528 (KLR)
- Parties
- Appellant: Maxion Kimani Mwaniki; Respondent: James Nyamu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted; prayer to set aside lower court order dismissed.
- Legal Topics
- Stay of Execution, Interlocutory Injunctions, Security for Costs, Substantial Loss, Land Use Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Maxion Kimani Mwaniki
Appellant
James Nyamu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the order pending appeal.
- 2 Whether the applicant has demonstrated sufficient cause and risk of substantial loss if stay is not granted.
- 3 Whether security should be ordered as a condition for stay.
Ratio Decidendi
The court found that the applicant would suffer substantial loss if forced to stop cultivating the land while challenging the injunction on appeal. The application for stay was brought without unreasonable delay, and the applicant demonstrated sufficient cause for granting the stay. The court held that the applicant must deposit security of KES 20,000 within 21 days as a condition for the stay, in accordance with the requirements of Order 41 Rule 4 of the Civil Procedure Code. The prayer to set aside the order of the lower court was dismissed as it is not possible for the appellate court to set aside an order already under appeal.
Court Disposition
Stay of execution granted; prayer to set aside lower court order dismissed.
Orders
- Stay of execution of the order made on 2/4/2007 is granted pending appeal.
- Applicant to deposit security of KES 20,000 within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 35 of 2007
MAXION KIMANI MWANIKI………………………………APPELLANT
VERSUS
JAMES NYAMU…………………………………………RESPONDENT
RULING
Notice of Motion filed and dated 15/5/2007 seeks orders to set aside order made on 2/4/2007 and execution of decree passed on that dated be stayed. The said orders were made in the Senior Principal Magistrates Courtat Kerugoya in SPM C.NO.51 of 2007against the Applicant being temporary injunction pending the hearing of the said suit. It is the said ruling and order that has given rise to this appeal. The appeal is pending. The prayer to set aside the order of another court already subject of Appeal is not possible. And that prayer is dismissed.
However, stay of execution of an order subject to appeal can be made. The same is provided for under order 41 Rule 4 CPC. The applicant must show sufficient cause to warrant a stay of execution which means the Respondent will be kept out of his fruits of his litigation. And the applicant must show that if order is not given he will suffer substantial loss. The applicant must also give security. This application is supported by affidavit of the applicant sworn on 16/5/2007. That application served on 11/5/2007 is admitted. The Respondent has filed a replying affidavit. It is not true that permanent injunction was granted only interim order granted pending hearing of suit. The Respondent commenced contempt proceedings saying the applicant has not stopped cultivating the land of Respondent.
Upon considering the arguments of parties it is clear to me that the dispute relates to use of land. The applicant would suffer substantial loss if he was to stop cultivating the land while he is challenging injunction on an appeal if stay was not granted. The application is not brought with unreasonable delay.
It is my finding that the stay should be granted. I am satisfied that the applicant has demonstrated sufficient cause of warrant granting the stay. He is already committed to civil jail and he has been let out to prosecute this application on bond. However I order that the applicant do deposit security in value of 20,000/= for payment of any order that may ultimately be found binding upon him as provided by law. Such deposit to be made with the next 21 days from today.
Costs shall be in the appeal.
It is so ordered.
Dated this 1st November, 2007.
J. N. KHAMINWA
JUDGE
1/11/2007
Khaminwa – Judge
Njue – Clerk
Maxion Kimani in court
N/A
Ruling read in open court.
J. N. KHAMINWA
JUDGE