[2008] KEHC 1239 (KLR)
The court found that the applicant had satisfied the conditions for the grant of a stay of execution. There was no undue delay in bringing the application, as it was prompted by the issuance of a Notice to Show Cause. The applicant demonstrated a real risk of substantial loss, given the ex-parte applicant's limited...
Source-derived case information.
- Citation
- [2008] KEHC 1239 (KLR)
- Parties
- Applicant: Republic; Respondent: Land Dispute Tribunal, Mumoni Division; Respondent: Mwingi Resident Magistrate’s Court; Interested Party: Mwangangi Masaku; Ex Parte Applicant: Maithya Nzue
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 274 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution granted with conditions
- Judges
- I Lenaola
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Land Dispute Tribunal, Mumoni Division
Respondent
Mwingi Resident Magistrate’s Court
Respondent
Mwangangi Masaku
Interested Party
Maithya Nzue
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending the determination of the appeal.
- 2 Whether the applicant will suffer substantial loss unless the stay is granted.
- 3 Whether the applicant is willing to provide security as required by law.
Ratio Decidendi
The court found that the applicant had satisfied the conditions for the grant of a stay of execution. There was no undue delay in bringing the application, as it was prompted by the issuance of a Notice to Show Cause. The applicant demonstrated a real risk of substantial loss, given the ex-parte applicant's limited means and the possibility that he may not be able to refund the costs if the appeal succeeds. The applicant also expressed willingness to deposit security as required by the court. Accordingly, the court granted the stay of execution on condition that the entire decretal sum in costs be deposited in court within 45 days, failing which execution may proceed. Costs were ordered...
Court Disposition
application for stay of execution granted with conditions
Orders
- The application dated 6.2.2007 is granted on condition that the entire decretal sum in costs is deposited in court within 45 days, failing which execution may issue.
- Costs shall abide the outcome of the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Misc. 274 of 2005
REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
versus
LAND DISPUTE TRIBUNAL,MUMONI DIVISION
MWINGI RESIDENT MAGISTRATE’S COURT ::::::::::RESPONDENTS
AND
MWANGANGI MASAKU:::::::::::::::::::::::::::::: INTERESTED PARTY
AND
EX-PARTE ::::::::::::::::::::::::::::::::::::::::::::::::::::MAITHYA NZUE
RULING
1. The Applicant in this matter seeks orders under Order XLI Rule 4, Order XXI Rule 22(1) and Order L of the Civil Procedure Rules that the execution in this suit be stayed pending the determination of Civil Appeal No. 3 of 2007 before the Court of Appeal. It is also prayed that costs be in the cause.
2. I have read the Affidavit in support sworn on 6. 2.2007 by Mwangagi Masaku and in it he depones that he was the original Interested Party in the Judicial review proceedings and when the ex-parte Applicant obtained the orders he had sought, he (the Interested Party) decided to appeal to the Court of Appeal and the appeal is yet to be determined. The ex-parte Applicant however moved to tax his costs and proceeded to execute the recovery thereof hence the present Application.
3. In his Replying Affidavit sworn on 15. 2.2007, the ex-parte Applicant depones that the Appeal before the Court of Appeal is frivolous and has no chance of success. That the Applicant has failed to furnish any security and that in any event, the Interested Party can refund the costs should the Appeal succeed.
4. I have heard the submissions by both Mr.Kisebu for the Applicant and Mr.Ngala for the Respondent. I have also perused the decision of Nambuye,J in Transbel Ltd vs Anne Mwelu Mutungi & Another [2007] KLRwhere the learned judge set out the conditions for grant of an order of stay of execution. Those conditions are that:
i. the Application should be lodged without undue delay.
ii. the Applicant will suffer substantial loss unless the order is granted.
iii. the Applicant is willing to deposit such security as the court may order.
5. In this case, I note that Onyancha,J. delivered his Ruling on 28. 9.2006 and awarded costs to the ex-parte Applicant. The present Application was filed on 7. 2.2007 only because of Notice to Show Cause had been issued on 24. 1.2007. I have heard no complaint as to delay and so I take it that the issue is moot.
6. As to substantial loss the Applicant states in his Affidavit sworn on 1. 3.2007 that the ex-parte Applicant is a peasant farmer and has no capacity to refund the costs should the Appeal succeed. I have weighed that issue and to my mind, there is real danger that the ex-parte Applicant may not have the means to refund the costs awarded to him. The Applicant has shown that he is willing to deposit such security as shall be ordered and in fairness to parties, that is the right way to deal with this matter.
7. In the event, I will grant the Application dated 6. 2.2007 on condition that the entire decretal sum in costs is deposited in this court within 45 days failure to which execution may issue.
8. Costs shall abide the Appeal.
9. Orders accordingly.
Dated and delivered at Machakos this 29thday of October 2008.
Isaac Lenaola
Judge
In the presence of: Mr.Makau h/b for Mr Kisebu
Mr. Musyoka for Applicant h/b for Mr. Ngala for Respondent
Isaac Lenaola
Judge