[2014] KEHC 7121 (KLR)
The court found that the application for stay of execution was filed without unreasonable delay, as the judgment was delivered on 26/2/2013 and the application was filed on 18/3/2013. Although the applicant did not specifically state that substantial loss would result if stay was not granted, the court considered...
Source-derived case information.
- Citation
- [2014] KEHC 7121 (KLR)
- Parties
- Appellant: Protus Mutiva; Respondent: Ebby Omina Ameyo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2012
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution pending appeal allowed
- Legal Topics
- Stay of Execution, Appeals Process, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Protus Mutiva
Appellant
Ebby Omina Ameyo
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 under Order 43 rule 6 of the Civil Procedure Rules 2010.
- 2 Whether the application was filed without unreasonable delay.
- 3 Whether the applicant demonstrated that substantial loss may result if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution was filed without unreasonable delay, as the judgment was delivered on 26/2/2013 and the application was filed on 18/3/2013. Although the applicant did not specifically state that substantial loss would result if stay was not granted, the court considered the circumstances and determined that this was a proper case to grant stay. The court also found it unnecessary to require the applicant to provide security for the grant of stay. Accordingly, the court allowed the application and granted a stay of execution of the trial court's decision pending the hearing and determination of the appeal.
Court Disposition
application for stay of execution pending appeal allowed
Orders
- Stay of execution of the decision of the trial court granted pending hearing and determination of the appeal.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 24 OF 2012
PROTUS MUTIVA ……………… APPELLANT/APPLICANT
VERSUS
EBBY OMINA AMEYO ………………………. RESPONDENT
R U L I N G
This is an application dated 15th March 2013 brought under Order 43 rule 6(1) and (6) of the Civil Procedure Rules 2010. It is an application for stay of execution pending appeal.
The application was filed under certificate of urgency. When it came for hearing on 29th April 2013, both counsel for the applicant and the respondent relied on documents filed in the pleadings. They neither made oral submissions, nor filed written submissions.
The conditions for grant of orders of stay of execution pending appeal are enumerated in Rule 6 (2) (a)and (b) which states as follows –
“6(2) No order for stay of execution shall be made
under sub-rule (1) unless –
The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
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.”
In my view, this application was filed without unreasonable delay. The judgment was delivered on 26/2/2013 and the application was filed on 18/3/13. There was therefore no unreasonable delay in bringing this application.
Indeed, an appeal has been filed herein. I have seen both the memorandum of appeal and the judgment of the trial court. Both have been filed herein. In such an application, the appellant/applicant is required to demonstrate that he or she will suffer substantial loss if stay is not granted. He has not emphasized this point and instead, he has asked the court to consider the merits of the case with regard to the trial court’s views on the burden of proof. He is trying to demonstrate the chances of success in the appeal.
Considering all the facts of the case however, I come to the conclusion that though the applicant has not specifically stated that he will suffer substantial loss if stay is not granted, this is a proper case to grant stay.
I do not consider it necessary for the applicant to provide any security for the grant of stay. I therefore allow the application and grant stay of execution of the decision of the trial court, pending the hearing and determination of the appeal herein. Costs in the cause.
Dated and delivered at Kakamega this 11th day of February, 2014
George Dulu
J U D G E