[2007] KEHC 2763 (KLR)
The applicant failed to demonstrate, beyond mere assertions, how he would suffer substantial loss if execution proceeded. The court found that the applicant's claim of irreparable loss was unsupported by evidence, as required by Order 41 rule 4(2)(a) of the Civil Procedure Rules. The respondents' assertion that they...
Source-derived case information.
- Citation
- [2007] KEHC 2763 (KLR)
- Parties
- Appellant: Muranya Mutiga; Respondent: Gerald Murira; Respondent: Julius Konga; Respondent: Janet Ntarara (All sued as officials of Thuura GBM Network)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muranya Mutiga
Appellant
Gerald Murira
Respondent
Julius Konga
Respondent
Janet Ntarara (All sued as officials of Thuura GBM Network)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the application for stay was brought without unreasonable delay.
- 3 Whether the applicant is ready to provide security for due performance of the decree.
Ratio Decidendi
The applicant failed to demonstrate, beyond mere assertions, how he would suffer substantial loss if execution proceeded. The court found that the applicant's claim of irreparable loss was unsupported by evidence, as required by Order 41 rule 4(2)(a) of the Civil Procedure Rules. The respondents' assertion that they could refund the decretal sum was not rebutted. Although the application was brought without unreasonable delay and the applicant expressed willingness to provide security, the absence of proof of substantial loss was fatal to the application. Consequently, the court dismissed the application for stay of execution and vacated the temporary stay.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs.
- The temporary stay is vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU Civil Appeal 4 of 2007
(Being an appeal from the judgment and Decree of Hon. J. R. Karanja, CM Meru in CMCC NO.243 of 2006 delivered on 4th December, 2006).
MURANYA MUTIGA …………….....…..……....…………............................APPELLANT
VERSUS
GERALD MURIRA
JULIUS KONGA
JANET NTARARA ( All sued as officials of Thuura GBM Network)...RESPONDENT
RULING
The applicant’s suit against the respondents having been dismissed by the lower court with costs to the latter, the said costs were assessed at Kshs.11,675/=. He has filed an appeal to this court. After the applicant failed to pay the costs, his properties were proclaimed hence this application to stay further execution.
The applicant has averred that should execution proceed the appeal shall be rendered nugatory and he will suffer irreparable loss and damage.
The respondents on their part have deposed, through the 1st respondent, that the applicant has conspired with his son who has filed an objection to attachment. They also argue that the applicant will not suffer any loss and that in any case the Self Help Group is capable of refunding the decretal sum in the unlikely event of the appeal succeeding.
In considering an application for stay the court must be satisfied that the applicant stands to suffer substantial loss; that the application for stay has been brought without unreasonable delay and finally that the applicant is ready to abide by any condition or order as to security.
What the respondents have set out to execute is their costs amounting to Kshs.11,675/= and, of course, the auctioneer’s costs. The applicant is expected to demonstrate how he stands to suffer substantial loss if execution was to proceed.
He has merely stated that it will plunge him into irreparable loss and damage. That is not the kind of proof of loss envisaged in Order 41 rule 4 (2) (a) of the Civil Procedure Rules. On the other hand the respondents have asserted that they will, as a Self Help Group, be in a position to refund the amount in question. It was incumbent upon the applicant to rebut that averment by showing that the respondents are not capable.
Although the applicant has intimated his readiness to abide by any conditions as to security and even though this application was brought without unreasonable delay, I come to the conclusion that the applicant has not demonstrated how he is likely to suffer substantial loss.
In the result this application is dismissed with costs and the temporary stay is vacated.
DATED AND DELIVERED AT MERU THIS 18th DAY OF May, 2007
W. OUKO
JUDGE