[2008] KEHC 1564 (KLR)
The court found that the applicant failed to provide sufficient details or evidence of the substantial loss he would suffer if the stay was not granted, beyond a mere assertion. The applicant also failed to offer any undertaking as to security for the due performance of the decree, which is a mandatory requirement....
Source-derived case information.
- Citation
- [2008] KEHC 1564 (KLR)
- Parties
- Appellant: M’IKILANYA M’ITARU; Respondent: ANDREW MICHUBU
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- SP Ouko
- Legal Topics
- Stay of Execution, Civil Jail, Security for Stay, Substantial Loss, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’IKILANYA M’ITARU
Appellant
ANDREW MICHUBU
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the application was brought under the correct provisions of the Civil Procedure Rules.
- 3 Whether the applicant has demonstrated substantial loss and provided security as required for stay of execution.
Ratio Decidendi
The court found that the applicant failed to provide sufficient details or evidence of the substantial loss he would suffer if the stay was not granted, beyond a mere assertion. The applicant also failed to offer any undertaking as to security for the due performance of the decree, which is a mandatory requirement. Furthermore, the application was brought after an unreasonable delay of eight months following the judgment, and only after the applicant was threatened with civil jail. The court held that these failures were fatal to the application and that the applicant had not satisfied the requirements for the grant of a stay of execution pending appeal. Consequently, the application was...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
- It is noted that the applicant is not in jail as temporary orders of stay had already been issued.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 59 of 2006
M’IKILANYA M’ITARU ………..……………………………….. APPELLANT
VERSUS
ANDREW MICHUBU ……………………………………….. RESPONDENT
RULING
The applicant has filed an appeal to this court challenging the decision of the trial magistrate in Maua PMCC No. 149 of 2004. Simultaneously he has brought the present chamber summons seeking, among other relief, stay of execution of the decree in Maua PMCC No. 149 of 2004 and the release of the applicant from civil jail pending the hearing and determination of the appeal.
It is the applicant’s case that his appeal has high chances of success and that he stands to suffer substantial loss if the decree is not stayed. It is also averred that the applicant is already in civil jail. Responding to these averments the respondent argues that the application is incompetent as the same is brought under the wrong provisions of the Civil Procedure Rules. Secondly, it is argued for the respondent that the decree sought to be stayed has not been annexed to the present application.
I have considered these rival arguments. The trial resident magistrate awarded Kshs. 186,180/= in general damages on 17th November 2005. The present application is brought pursuant to Order 9B Rule 8 and Order 21 Rule 22 of the Civil Procedure Rules and of course section 3A of the Civil Procedure Act.
As correctly pointed out by learned counsel for the respondent the application ought to have been brought under Order 41 Rule 4 of the Civil Procedure Rules. That is clear from the prayers sought and no prejudice has been caused to the applicant by that. Under Order 41 Rule 4 a stay will be granted where the applicant satisfies the court that substantial loss may result to him if a stay is not granted. The application for stay must also be brought without unreasonable delay and the applicant must give an undertaking as to security.
The applicant has deposed that he stands to suffer substantial loss if execution is not stayed. Apart from that plain statement there are no details as to the nature of loss he stands to suffer. The burden was upon him to persuade the court that should the decretal sum be paid to the respondent the latter would not be in a position to refund it in the event the appeal filed by the applicant succeeds. The applicant has also failed to declare that he was ready to offer any security.
Finally, the judgment was delivered on 17th November 2005, while this application was brought on 18th July 2006, some eight months later. It is apparent that the applicant only moved to court when he was threatened with civil jail. There was, in my view, unreasonable delay.
In a nutshell, I find no merit in this application which I hereby dismiss with costs to the respondent. It is noted that on 19th July 2006 the court (Sitati,J) issued temporary orders of stay and directed that the applicant be released from civil jail. It is therefore clear to me that the applicant is not in jail. Orders accordingly.
Dated and delivered at Meru this 3rd day of October 2008.
W. OUKO
JUDGE