[2008] KEHC 2442 (KLR)
The court found that although the applicant filed the application without delay and offered to deposit the decretal sum as security, it failed to demonstrate what substantial loss it would suffer if the stay was not granted. Demonstrating substantial loss is a core requirement under Order 41 Rule 4 of the Civil...
Source-derived case information.
- Citation
- [2008] KEHC 2442 (KLR)
- Parties
- Appellant: Put Sarajevo Construction Ltd; Respondent: Mariko Wandugu Odera
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 40 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Contractual Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Put Sarajevo Construction Ltd
Appellant
Mariko Wandugu Odera
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the applicant is entitled to a stay of execution pending appeal under Order 41 Rule 4 of the Civil Procedure Rules.
- 3 Whether the offer to deposit the decretal sum as security is sufficient to warrant a stay.
Ratio Decidendi
The court found that although the applicant filed the application without delay and offered to deposit the decretal sum as security, it failed to demonstrate what substantial loss it would suffer if the stay was not granted. Demonstrating substantial loss is a core requirement under Order 41 Rule 4 of the Civil Procedure Rules for granting a stay of execution. The applicant's assertion regarding the respondent's means was insufficient, especially since the respondent owned the property in question. 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 KISUMU
Civil Appeal 40 of 2008
PUT SARAJEVOCONSTRUCTION LTD --------- APPLICANT/APPELLANT
-VERSUS-
MARIKO WANDUGU ODERA ---------------- RESPONDENT
RULING
Coram J. W. Mwera, Judge,
Ms. Oron for applicant/appellant,
Odhiambo for the respondent,
Raymond CC.
On 28/4/2008 the appellant company prayed this court under S. 3A CPA and O41 r 4 CPR that it issues a temporary stay of execution until the appeal herein is determined.
Ms Oron told the court that the appeal lodged from Bondo court had high chances of success so without the stay order it would be rendered nugatory finally if it succeeds. That phrase appears in the Court of Appeal Rules – not here in the High Court. And that the applicant would deposit the decretal sum as security.
Mr. Gadhia, advocate for the appellant, swore an affidavit in support. In it it was added that the respondent was a person of unknown means. If he gets the decretal sum he will not be able to refund it in case the appeal succeeds.
The replying affidavit was sworn by the respondent on the lines Mr. Odhiambo argued it. That the sum awarded was for special damages. It was a balance due on a contract of lease whereby the appellant leased from the respondent land NO. SIAYA/OMIA MALO/781 at ksh 200,000/=. Ksh 85,000/= was paid and not the balance – hence the suit in the lower which ended in the award of ksh 115,000/=. And that if he could have a property to lease, repaying any sums in this appeal could be assured.
After hearing counsel, and although the applicant seemed to have filed this application without delay and it offered to deposit the decretal sum in court as security, it failed to demonstrate to this court what substantial loss it would suffer in the event that the stay order was not given. That is the core condition that a party must demonstrate, of course, as well as the other two under O41 r. 4 CPR referred as alluded to above.
The applicant having failed on that score, loses this application with costs.
Delivered on 26. 5.2008
J. W. MWERA
JUDGE
JWM/hao