[2003] KEHC 637 (KLR)
The court found that the applicant failed to demonstrate substantial loss or irreparable damage that would result if stay was not granted. The applicant's assertions regarding sentimental value and irreparable harm were not substantiated with evidence. Furthermore, the delay of over one year in filing the...
Source-derived case information.
- Citation
- [2003] KEHC 637 (KLR)
- Parties
- Applicant: Pauline Njeri Kariuki; Respondent: Monicah Njeri Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5224 of 1990
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Substantial Loss, Court Discretion, Delay in Filing, Security for Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Njeri Kariuki
Applicant
Monicah Njeri Kariuki
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for grant of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made expeditiously and with adequate explanation for delay.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss or irreparable damage that would result if stay was not granted. The applicant's assertions regarding sentimental value and irreparable harm were not substantiated with evidence. Furthermore, the delay of over one year in filing the application for stay was deemed inordinate and inadequately explained. The court emphasized that the requirements under Order 41 Rule 4 of the Civil Procedure Rules were not met, particularly regarding expeditious filing and proof of substantial loss. Consequently, the application for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 5224 OF 1990
PAULINE NJERI KARIUKI…………………….……..……1ST PLAINTIFF
V E R S U S
MONICAH NJERI KARIUKI………………………………...DEFENDANT
R U L I N G
This is a Notice of Motion dated 21st May 2003 made under Order XLI Rule 4(1) and (2) of the Civil Procedure Rules asking for stay of execution of the decree issued on 18. 1.2002 pending hearing of the appeal against the same decree. The affidavit in support by Pauline Njeri Kariuki sworn on 21. 5.2003 states that judgement was delivered on 17. 10. 2001 and she filed Notice of Appeal on 24. 10. 2001 but has not filed his memorandum of appeal due to constant disappearances of file from the Registry, but through Replying Affidavit of Monica Njeri Kariuki sworn on 6. 6.2003 the Respondent opposes the application saying it is too delayed and not filed expeditiously and is meant merely to perpetuate the advantage the Applicant is enjoying. That the blame against the Registry is not true as on 15. 8.2002, the Registrar had in fact informed the Applicants that the proceedings were ready yet they have not yet acted on the information.
The law governing the Courts’ discretion in stay proceedings is now clear and is provided under Order 41 Rule 4. It requires Applicant to show sufficient cause and the Court has to be satisfied that Applicant may suffer substantial loss if stay is not granted and that the application is made expeditiously and the Applicant gives security.
Substantial loss is the basis upon which this jurisdiction is to be exercised and unless this is shown, there would be no basis on which the application can be granted. The overriding principle is that a decree holder ought not to be denied the fruit of his judgment. On the other hand, if appeal is preferred against a judgment, the appellant should not if successful in his appeal, have nothing to reap out of his appeal. In KENYA SHELL LTD. vs. BENJAMIN KARUGA & ANOTHER (1982-88) I KAR 1018 Hancox J.A. quoting COTTON L.J. in WILSON Vs. CHURCH (No.2) (1879) 12 C.H.D.454 : -
“I will state my pinion that when a party is appealing exercising his undoubted right of appeal, this Court ought to see that the appeal if successful is not nugatory.”
In the same case, Platt J.A. said -
“It is usually a good rule to see if Order 41 Rule 4 of Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case where appeal would be rendered nugatory by some other events.”
The Applicant herehas merely stated that the land is of great ht5656sentimental value to her and that she will suffer irreparable damage unless stay is granted but the nature and extent of the apprehended damage is not shown. Furthermore, the delay is not adequately explained.This delay of over one year is inordinate and cannot be ignored.
I find it impossible in principle to grant the application which I dismiss with costs.
DELIVERED this 12th June 2003.
A.I. HAYANGA
JUDGE
Read to -
Mr. Gichachi for Respondent
Mr. Omwega for Applicant
A.I. HAYANGA
JUDGE
12. 6.2003