[2021] KEELC 204 (KLR)
The court found that the issues raised in the application for stay of execution had already been determined in previous applications, and the applicant had not demonstrated that the respondents were incapable of refunding the decretal sum if paid. Furthermore, the applicant failed to offer any security for the due...
Source-derived case information.
- Citation
- [2021] KEELC 204 (KLR)
- Parties
- Appellant: The Methodist Church of Kenya Registered Trustees; Respondent: David Mwebia Muthamia; Respondent: M’Inoti M’Mwaria; Respondent: Hellen Mwaria; Respondent: Bishop J. Muku; Respondent: Joyce J. Kinoti; Respondent: James Kibiti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 236 ‘A’ of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Procedure, Costs Taxation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Methodist Church of Kenya Registered Trustees
Appellant
David Mwebia Muthamia
Respondent
M’Inoti M’Mwaria
Respondent
Hellen Mwaria
Respondent
Bishop J. Muku
Respondent
Joyce J. Kinoti
Respondent
James Kibiti
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the certificate of costs pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the applicant has offered security for the due performance of the decree.
Ratio Decidendi
The court found that the issues raised in the application for stay of execution had already been determined in previous applications, and the applicant had not demonstrated that the respondents were incapable of refunding the decretal sum if paid. Furthermore, the applicant failed to offer any security for the due performance of the decree. In the absence of these requirements, the court held that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC APPEAL NO. 236 ‘A’ OF 2013
THE METHODIST CHURCH OF KENYA REGISTERED TRUSTEES ...APPELLANTS
VERSUS
DAVID MWEBIA MUTHAMIA................................................................1ST RESPONDENT
M’INOTI M’MWARI.................................................................................2ND RESPONDENT
HELLEN MWARI .....................................................................................3RD RESPONDENT
BISHOP J. MUKU ....................................................................................4TH RESPONDENT
JOYCE J. KINOTI ...................................................................................5TH RESPONDENT
JAMES KIBITI .........................................................................................6TH RESPONDENT
RULING
1. The appellant seeks stay of execution of the certificate of costs issued on 6. 5.2020 pending the hearing and determination of Nyeri Civil Appeal No. 315 of 2019.
2. The application is supported by an affidavit sworn on 11. 9.2020. The reasons given are the bill was taxed despite the pendency of an appeal against a ruling made on 25. 9.2019; there is an impending execution of the costs, the appellants will suffer substantial loss and there has been no unreasonable delay in filing this application.
3. The respondents oppose the application through a replying affidavit sworn on 6. 10. 2020 on the grounds that there has been non-compliance with the decree, similar applications for stay have been dismissed, no substantial loss has been demonstrated, lower court costs of Kshs. 486,675/= have not been paid, no demonstration has been made that they are incapable of refunding the amount if paid and there has been inordinate delay in prosecuting the appeal.
4. Order 22 Rule 22 under which the application is made provides where a decree has been sent to a court to execute and if there is sufficient cause to issue stay for a reasonable time to enable the judgment debtor apply to the court by which the decree was passed or to any court having appellate jurisdiction in respect of the decree. In granting such an order the court may seek for security or impose such conditions upon the judgment debtor as it thinks fit.
5. InNational Industrial Credit Bank Ltd. –vs- Aquinas Francis Wasike & Another [2006] eKLRthe Court of Appeal held:-
“This court has said before and it could bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or lack of them. Once an applicant exposes a respondent would be unable to pay back the decretal amount, the potential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.”
6. The decree appealed against was issued on 25. 9.2019. One of the orders sought in the application dated 1. 4.2019 was for stay of the decree of Meru Chief Magistrate’s Court Suit No. 349 of 1999 and a review or setting aside the court’s order of 20. 11. 2019 dismissing the appeal. The court determined the application and rendered its ruling on 25. 9.2019.
7. Subsequently, the applicant filed another application dated 13. 5.2019 which was dismissed on 25. 5.2019. The court declined to grant any stay and ordered the file be marked as closed. As if that was not enough another application dated 11. 9.2020 was filed seeking similar orders.
8. Given the foregoing, it is evident the issues raised in the instant application have been determined by this court.
9. Be that as it may the applicant has not shown the respondents are incapable of refunding the decretal sum if it were to be paid to them.
10. Secondly the applicant has offered no security for the due performance of the decree.
11. In view of the above, I find no merits in the application. The same is dismissed with costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 8TH DAY OF DECEMBER, 2021
In presence of:
No appearance for parties
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE