[2010] KEHC 1261 (KLR)
The court found that the applicant failed to satisfy the requirements for a stay of execution under Order 41 rule 4 of the Civil Procedure Rules. The application was filed nearly a year after the decision without any explanation for the delay. The supporting affidavit did not indicate what substantial loss would be...
Source-derived case information.
- Citation
- [2010] KEHC 1261 (KLR)
- Parties
- Appellant: Naomi Wambui Ndichu; Respondent: George Nganga Njuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 80 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Succession Appeals, Confirmation of Grant, Delay in Filing, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi Wambui Ndichu
Appellant
George Nganga Njuki
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 pending appeal.
- 2 Whether the application for stay was filed without unreasonable delay.
- 3 Whether the applicant has demonstrated substantial loss and offered security as required by law.
Ratio Decidendi
The court found that the applicant failed to satisfy the requirements for a stay of execution under Order 41 rule 4 of the Civil Procedure Rules. The application was filed nearly a year after the decision without any explanation for the delay. The supporting affidavit did not indicate what substantial loss would be suffered if the stay was not granted, nor did the applicant offer any security for due performance of the decree. Additionally, the applicant did not provide reasons for failing to seek a stay in the subordinate court before approaching the High Court. As a result, 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.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 80 of 2009
NAOMI WAMBUI NDICHU …………………………..APPELLANT
V E R S U S
GEORGE NGANGA NJUKI ………………………….RESPONDENT
R U L I N G
The Applicant was aggrieved by the decision of the subordinate court in not providing for her during the confirmation of the grant in the succession cause at Kiambu and has preferred an appeal to this court.In doing this she is exercising her undoubted right of appeal.She seeks stay of execution of the decree pending the hearing and determination of the appeal.The Respondent’s response to the application is that the Applicant should have first sought stay in the subordinate court; that she should not have directly come to this court for stay without having good reasons which she should share with the court.He relied on the decision in Kwa Hola Pharmacy –Vs- Copy Cat Coast Ltd. [2002] 2 KLR 269. Indeed no reason was given why the Applicant did not seek stay before the court that made the decision subject of the appeal.
The present application was stated to be brought under Order 41 rule 4 of the Civil Procedure Rules and section 3A of the Civil Procedure Act.It is notable that inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the court are secured by Rule 73 of the Probate and Administration Rules of the Law of Succession Act (Cap. 160).
If Order 41 rule 4 is applicable, the Applicant has to demonstrate the application was brought without delay, that she will suffer substantial loss if the application is not granted and she has to offer security of due performance of such decree a order as may ultimately be binding on her.The decision being appealed from was rendered on11th September, 2009. The application was filed on20th August 2010, about one year later.There was no explanation of the delay.The supporting affidavit did not indicate the loss that may be occasioned if the application is not granted, and no security was offered.
The application lacks merits and is dismissed with costs.
DATED AND DELIVERED AT
NAIROBI
THIS 30TH DAY OF SEPTEMBER 2010
A.O. MUCHELULE
J U D G E