[2017] KEHC 5829 (KLR)
The court found that the applicant failed to satisfy the mandatory requirements for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, as there was no evidence of substantial loss, no explanation for delay, and no offer of security for due performance. The supporting affidavit and annexures...
Source-derived case information.
- Citation
- [2017] KEHC 5829 (KLR)
- Parties
- Applicant: Paul Kirimi Kithinji; Respondent: Johnson Kyenzeku Kalelu & Gladys Wanza Kalelu (Suing as the administrator of the estate of Deceased Paul Musyimu Kalelu)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 5 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application for stay of execution dismissed; leave to file appeal out of time granted.
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kirimi Kithinji
Applicant
Johnson Kyenzeku Kalelu & Gladys Wanza Kalelu (Suing as the administrator of the estate of Deceased Paul Musyimu Kalelu)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the applicant is entitled to leave to file an appeal out of time.
Ratio Decidendi
The court found that the applicant failed to satisfy the mandatory requirements for a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, as there was no evidence of substantial loss, no explanation for delay, and no offer of security for due performance. The supporting affidavit and annexures did not establish a case for stay. However, the court exercised its discretion to allow the applicant leave to file an appeal out of time, granting 14 days for the intended appeal to be filed and served. The application for stay was dismissed, but leave to appeal out of time was allowed, with half costs awarded to the respondent.
Court Disposition
Application for stay of execution dismissed; leave to file appeal out of time granted.
Orders
- Application for stay of execution is dismissed.
- Applicant is granted 14 days to file and serve the intended appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
MISC. CIVIL APPLICATION NO. 5 OF 2017
PAUL KIRIMI KITHINJI.........................................APPLICANT
VS
JOHNSON KYENZEKU KALELU & GLADYS WANZA KALELU
(Suing as the administrator of the estate of
Deceased Paul Musyimu Kalelu....................RESPONDENT
RULING
Notice of Motion dated 2nd February 2017 was brought by Muthega & Kariuki Advocates on behalf of Applicant –Judgment Debtor seeking orders of stay of execution of judgement and Decree in Githongo SRMCC No. 37 of 2015 pending the determination of the application.
The application was supported by grounds on face of application and affidavit of Paul Kirimi Kithinji. The Judgement in Githongo SRMCC No.37 of 2015 was delivered on 4th November 2016 in favour of the Respondent for the sum of Kshs. 948,678/- together with costs.
Stay of execution pending appeal by applicant is an application that is provided for under order 42 Rule 6(1) & (2) of Civil Procedure Rules. The grounds to prove while seeking stay of execution are provided under order 42 Rule 6(2) CPR.
The applicant didn’t quote the order or rule under which application was made neither did they attempt to prove that the plaintiff will suffer substantial loss if orders of stay are not granted;
They didn’t bother to prove application had not been filed without unreasonable delay and they didn’t offer security due to performance of the decree on order as may ultimately be binding on them.
What the applicant endeavoured to prove is that the decree had been forwarded to insurance company but got misplaced when they were moving office as per affidavit of legal officer to APA insurance Company Ltd.
Judgement from Githongo SRMCC No.37 of 2015 was delivered on 4th November 2016. The decree and Certificate of Costs is signed on 25th January 2017. Annexture PKKZ doesn’t make any reference to Civil Case No. 37 of 2015 and it is not known of what importance it is in the application. From the letter dated 27th January 2017 by Lee Maina & Associates for Decree Holder the decree and Certificate of Costs were forwarded to Judgment Debtors counsel Muthega & Kariuki Co. Advocates and J.G. Gitonga & Co. Advocates.
I’m unable to find in the affidavit and the annextures that applicant has proved a case for stay of execution. In regard to leave to file appeal out of time and do allow same and give applicant 14 days within which to file and serve the intended appeal. Application for Plaintiff allowed. Half costs to Respondent.
Ruling Signed, Delivered and Dated on this 28th Day of April 2017.
In the presence of:
C/A –Penina
Applicant- Mr Kariuki for advocate
Respondent –M/s Lee Maina & Associates advocates for associates.
HON. A.ONG’INJO
JUDGE