[2002] KEHC 794 (KLR)
The court found that the applicant failed to demonstrate, with facts or evidence, that they would suffer substantial loss if required to pay Kshs.50,000 to the respondent as a condition for stay of execution. Mere assertions of potential loss are insufficient. Furthermore, the applicant did not provide any material...
Source-derived case information.
- Citation
- [2002] KEHC 794 (KLR)
- Parties
- Applicant: Pan Africa Builders & Contractors Ltd.; Respondent: Wilfred Amos Albert
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 109 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan Africa Builders & Contractors Ltd.
Applicant
Wilfred Amos Albert
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the applicant demonstrated substantial loss if required to comply with the lower court order to pay Kshs.50,000 to the respondent as a condition for stay of execution.
- 2 Whether the applicant provided evidence that the respondent would be unable to refund the amount if the appeal succeeds.
- 3 Whether the court should be dictated to regarding the conditions for granting a stay of execution.
Ratio Decidendi
The court found that the applicant failed to demonstrate, with facts or evidence, that they would suffer substantial loss if required to pay Kshs.50,000 to the respondent as a condition for stay of execution. Mere assertions of potential loss are insufficient. Furthermore, the applicant did not provide any material to support the claim that the respondent would be unable to refund the amount if the appeal succeeded. The court emphasized its discretion in imposing conditions for stay and declined to be dictated to by the applicant. Consequently, the application for stay was dismissed 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
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA CIVIL APPEAL NO. 109 OF 2002
PAN AFRICA BUILDERS & CONTRACTORS LTD. …………………………………APPLICANT
VERSUS
WILFRED AMOS ALBERT …………………………..RESPONDENT
R U L I N G Counsel for the applicant has not demonstrated how the applicants will suffer substantial loss if they comply with the lower court order which required them to pay Kshs.50,000/= from the dectral amount to the respondent as a conditions for stay of execution there.
Just stating that if the applicants pay Kshs.50,000/= to the respondent they will suffer substantial loss is not sufficient.
Also, how does the applicant’s counsel convince this court that if the appeal succeeds, the respondent is not the sort of litigant who will not refund the Kshs.50,000/=.
There must be facts and circumstances submitted before this court to back up the fear that the respondent has no means at all to refund the money if the appeal succeeds. None has been laid before the court.
The court does not need to be dictated to as to what condition or terms to impose in the exercise of its discretion in an application of this nature.
This application is dismissed with costs.
Delivered and dated this 29th day of July, 2002.
D.K.S. AGANYANYA JUDGE