[2010] KEHC 3052 (KLR)

[2010] KEHC 3052 (KLR)

The court held that while the applicant made the application without undue delay and offered to provide security, he failed to demonstrate substantial loss as required under Order XLI Rule 4(2)(a) of the Civil Procedure Rules. The court noted that the applicant is already gainfully employed elsewhere and did not provide evidence that the intended appeal would be rendered nugatory if stay was not granted. The court emphasized that all three conditions under Order XLI Rule 4(2) must be met conjunctively, and failure to satisfy any one is fatal to the application. Consequently, the application for stay of execution pending appeal was dismissed with costs to the respondents.

Citation
[2010] KEHC 3052 (KLR)
Parties
Applicant: Reverend Samwel Atunga Omagwa; Respondent: Reverend Francis Nyamwaro; Respondent: Reverend Bishop Walter Obare; Respondent: Trustees Evangelical Lutheran Church in Kenya
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
17 March 2010
Case Number
Civil Suit 488 of 2008
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Outcome
application dismissed with costs to the respondents
Judges
AT Sitati
Legal Topics
Stay of Execution, Substantial Loss, Security for Due Performance, Appeal Rights
Source Language
English
Civil Procedure Stay of Execution Substantial Loss Security for Due Performance Appeal Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Reverend Samwel Atunga Omagwa

Applicant

Reverend Francis Nyamwaro

Respondent

Reverend Bishop Walter Obare

Respondent

Trustees Evangelical Lutheran Church in Kenya

Respondent

Procedural Posture

Stay Application / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order XLI Rule 4 of the Civil Procedure Rules.
  2. 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
  3. 3 Whether the application was made without unreasonable delay.

Ratio Decidendi

The court held that while the applicant made the application without undue delay and offered to provide security, he failed to demonstrate substantial loss as required under Order XLI Rule 4(2)(a) of the Civil Procedure Rules. The court noted that the applicant is already gainfully employed elsewhere and did not provide evidence that the intended appeal would be rendered nugatory if stay was not granted. The court emphasized that all three conditions under Order XLI Rule 4(2) must be met conjunctively, and failure to satisfy any one is fatal to the application. Consequently, the application for stay of execution pending appeal was dismissed with costs to the respondents.

Court Disposition

application dismissed with costs to the respondents

Orders

  • The plaintiff's application dated 14/05/2009 is dismissed with costs to the defendants/respondents.