[2012] KEHC 5068 (KLR)
The court found that the application for stay of execution was misconceived because the intended appeal was against a ruling on an application for review, not against the sale of land to secure payment of the decretal sum. The application was deemed an abuse of the court process, as it did not relate to the subject...
Source-derived case information.
- Citation
- [2012] KEHC 5068 (KLR)
- Parties
- Appellant: Mugure Mahinda; Respondent: Ali Mohamed Farah
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 7 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs to the respondent
- Judges
- MJA Emukule
- Legal Topics
- Stay of Execution, Security for Performance, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mugure Mahinda
Appellant
Ali Mohamed Farah
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the application for stay is properly before the court given the nature of the intended appeal.
- 3 Whether the applicant has satisfied the conditions for grant of stay under Order 42 rule 6(2) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application for stay of execution was misconceived because the intended appeal was against a ruling on an application for review, not against the sale of land to secure payment of the decretal sum. The application was deemed an abuse of the court process, as it did not relate to the subject matter of the intended appeal. The applicant failed to satisfy the conditions for stay under Order 42 rule 6(2) of the Civil Procedure Rules, particularly regarding the relevance of the application and adequacy of security. Consequently, the application lacked merit 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 with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 7 OF 2003
MUGURE MAHINDA…………………………………………………………..……..APPELLANT
VERSUS
ALI MOHAMED FARAH……………………………………………………………RESPONDENT
RULING
By an application dated 20th May 2011 and filed on 23rd May 2011, the Applicant sought a stay of execution of the decree to sell the Applicant'S land known as Nakuru/Municipality/219 to satisfy the decree in Nakuru CMCCC No. 2536 of 1999 which was made on 13/12/2002.
The grounds for staying execution of decree are set out in Order 42 rule 6(1) & (2) of the Civil Procedure Rules 2010. Rule 6(1) provides that no appeal or second appeal shall operate as a stay of execution.In order for a stay of execution to be given, the conditions set out in rule 6(2) must be fulfilled. These are -
(a)substantial loss may result to the applicant unless the order is made, and that the application has been made without unreasonable delay.
(b) such security as the court orders for the performance of such decree or order as may ultimately be binding on the applicant.
Mr. Mindo(counsel for the Applicant)argued that there is security for due performance by the applicant of her obligations. The amount of security was not stated.
Mr. Gekong\'a, counsel for the Respondent, opposed the application. His case is that this matter commenced way back in 1999. It was determined on 13/12/2002. The Applicant applied and was granted orders to pay the decretal sum by instalments. The Appellant paid one instalment and stopped. It is now over 13 years since the accident occurred and over ten years since the orders were made, that the Respondent should be allowed to enjoy the fruits of the judgment, that there is no merit in the application, that the security is grossly inadequate, and that the application should be dismissed unless half of the decretal sum is deposited in court.
I have considered these rival arguments. The intended appeal is against my Ruling delivered on 6th May 2011 on an application for review of a Ruling of my senior brother Hon. Maraga J.,(as he then was), (now Judge of Appeal),dismissing the Applicant\'s Appeal. It has absolutely nothing to do with the sale of land to secure payment of the decretal sum. To that extent therefore the application for stay of sale of the Applicant's land is misconceived and is a calculated abuse of the court process.
I see no merit in it and dismiss the same with costs to the Respondent.
It is so ordered.
Dated, signed and delivered at Nakuru this 27th day of January, 2012
M. J. ANYARA EMUKULE
JUDGE