[2007] KEHC 2784 (KLR)
The High Court found that the application for stay of execution was not res judicata, as Order 41 rule 4(1) permits a fresh application in the appellate court regardless of a similar application in the lower court. The applicant demonstrated substantial loss would occur if stay was not granted, as he risked...
Source-derived case information.
- Citation
- [2007] KEHC 2784 (KLR)
- Parties
- Appellant: Paul Kaimenyi Ngugi; Appellant: Kaaria Mbui Magambo; Respondent: Antony Kiogora (suing thro' his father and next friend Richard Kithinji)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 2000
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed, subject to deposit of costs for the appeal.
- Legal Topics
- Stay of Execution, Security for Costs, Substantial Loss, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kaimenyi Ngugi
Appellant
Kaaria Mbui Magambo
Appellant
Antony Kiogora (suing thro' his father and next friend Richard Kithinji)
Respondent
Procedural Posture
Civil Appeal / 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 is res judicata given a similar application was granted in the subordinate court.
- 3 Whether the applicant has demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The High Court found that the application for stay of execution was not res judicata, as Order 41 rule 4(1) permits a fresh application in the appellate court regardless of a similar application in the lower court. The applicant demonstrated substantial loss would occur if stay was not granted, as he risked attachment of property or imprisonment, both of which could not be undone if the appeal succeeded. The application was brought promptly, within ten days of the subordinate court's order. The court clarified that the obligation to provide security is at the court's discretion, not an automatic requirement on the applicant. Consequently, the court granted a stay of execution pending...
Court Disposition
Application for stay of execution allowed, subject to deposit of costs for the appeal.
Orders
- There shall be stay of execution pending the hearing and determination of the appeal herein.
- The order is subject to the applicant depositing in court the equivalent of costs for the appeal to be assessed by the Deputy Registrar on or before 31st May, 2007.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 35 of 2000
((Being an appeal from the judgment by Mr. N. H. Oundu, RM in Civil CaseNo.438
of 1997 at Meru dated 4. 4.1997
PAUL KAIMENYI NGUGI ……………………………………………. 1S APPELLANT
KAARIA MBUI MAGAMBO …………………………….…………. 2ND APPELLANT
VERSUS
ANTONY KIOGORA(suing thro’ his father and next friend
RICHARD KITHINJI ………………………………………………… RESPONDENT
RULING
On 4th April, 2000 the court below (Mr. Oundu, R.M) gave judgment for the respondent and against the applicant in the sum of Kshs.90,000/= in general damages and Kshs.6,500/= for special damages.
The applicant was aggrieved by this award and filed an appeal to challenge it. He simultaneously filed an application for stay of execution in the trial court, which application was granted on condition that he deposits the decretal amount in a bank.
He subsequently filed this application once again seeking stay of execution of the decree of the subordinate court. In the application the applicant states that the respondent has threatened to execute yet he has filed an appeal challenging the decree. That the decretal amount is substantial and he is not capable of paying it as he is a primary school teacher. That what this means is that he either goes to civil jail or his property is attached.
That the appeal raises substantial issues, he argues further. The application is opposed by the respondent who avers in a replying affidavit sworn by his counsel that the applicant having been granted a conditional stay was estopped from bringing this application.
These arguments have duly been considered. Order 41 rule 4(1) of the Civil Procedure Rules allows an applicant to apply to the High Court for stay even where the court appealed from has granted or refused a similar application.
The application to this court is not, in view of that provision, res judicata. Order 41 rule 4(2) provides for three conditions for the grant of the order of stay of execution. First the court must be satisfied that the application for stay has been brought without unreasonable delay.
Secondly the applicant must demonstrate that he stands to suffer substantial loss if the stay sought is not granted. Finally the applicant must be ready to abide by any orders as to security.
The applicant maintains that either his property will be attached or he will be sent to civil jail. If his property is attached and sold, he will certainly suffer substantial loss as the property will be out of his reach and restitution will not be possible if the appeal succeeds. If he is sent to civil jail, the likelihood of him serving the term before the appeal is head and determined is real. This is an eventuality that cannot be undone. I am therefore persuaded that substantial loss has been shown.
Regarding delay, judgment in the court below was delivered on 4th April, 2004. The applicants application for stay to the subordinate court was granted on 24th June, 2004, while the present application filed on 4th July, 2004 – less than ten days after the order of the subordinate court. I find that the application has been brought timeously. The applicant has not offered any security. As a matter of fact, he has argued that the conditional stay granted by the subordinate court is onerous.
Sub rule 2 (b) of order 41 rule 4 does not impose a duty on the applicant to give an undertaking to provide security. It provides;
“(b) such security as the court orders for the due performance
of such decree or order as may ultimately be binding on him has been given by the applicant”
It is the court to place a condition as to security. If the applicant fails to comply with it the stay stands vacated and execution may proceed.
In the result I allow the application for stay and order that there shall be stay of execution pending the hearing and determination of the appeal herein. This order is subject to the applicant depositing in court the equivalent of costs for the appeal to be assessed by the Deputy Registrar of this court, on or before 31st May, 2007 failing which this order stands vacated and execution to proceed.
Costs to be in the appeal.
DATED AT MERU THIS 11th DAY OF May, 2007
W. OUKO
JUDGE