[2005] KEHC 2476 (KLR)
The court found that the applicant failed to demonstrate that it would suffer substantial loss if the stay of execution was not granted. The only reason advanced was the proclamation of its tools of trade, which the court found to be ordinary office equipment easily replaceable, except for a grounded motor vehicle....
Source-derived case information.
- Citation
- [2005] KEHC 2476 (KLR)
- Parties
- Appellant: Othaya Farmers Co-op Society Ltd; Respondent: Mwangi wa Kihuni
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 94 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Substantial Loss, Order Xli Rule 4, Irreparable Loss, Execution Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Othaya Farmers Co-op Society Ltd
Appellant
Mwangi wa Kihuni
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for stay of execution pending appeal under Order XLI rule 4.
- 2 Whether the applicant will suffer substantial or irreparable loss if the stay is not granted.
Ratio Decidendi
The court found that the applicant failed to demonstrate that it would suffer substantial loss if the stay of execution was not granted. The only reason advanced was the proclamation of its tools of trade, which the court found to be ordinary office equipment easily replaceable, except for a grounded motor vehicle. The applicant's assertion of having an arguable appeal was not substantiated. Consequently, the court held there was no justification to interfere with the execution process and dismissed the application for stay of execution with costs.
Court Disposition
application for stay of execution dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Appeal 94 of 2004
OTHAYA FARMERS CO-OP SOCIETY LTD…….…………. APPELLANT VERSUS MWANGI WA KIHUNI ……………………………………….. DEFENDANT
R U L I N G
Othaya Farmers Co-op. Society the Appellant/Applicant seeks an order for stay of execution pending appeal. It contends that it has an arguable appeal as per the memorandum of appeal which it has filed. It further contends that the Respondent has initiated the execution process by proclaiming on its tools of trade and therefore it stands to suffer irreparable loss.
The Respondent objects to the application. Grounds of opposition have been filed contending inter alia that an appeal under Order XLI rule 4 is not sufficient reason for a stay and that the applicant has not shown that he will suffer any irreparable loss.
Having considered this application and the affidavits in support and in reply, I find that the applicant has not satisfied this court that substantial loss may result to it unless the order is made, the only reason being given is that the Respondent has proclaimed the applicants tools of trade and if sold, they will occasion the applicant substantial loss.
I have however examined the proclamation and I am of the considered view that the attached goods apart from a motor-vehicle said to be grounded are ordinary office equipments which can easily be replaced.
Although the applicant contends that it has an arguable appeal this has not been demonstrated to this court. I therefore find no justification to interfere with the execution process.
Accordingly I reject the application for stay of execution and dismiss it with costs.
Orders accordingly.
Dated signed and delivered this 10th day of June 2005.
H. M. OKWENGU
JUDGE
In the presence of d Mugambi for Appellant
Gori for Respondent