[2019] KEELC 1207 (KLR)
The court found that the application for stay of execution was brought with inordinate delay, approximately 10 months after judgment, and that the applicants did not require proceedings to file the application. The process of execution had already commenced. The applicants failed to discharge their burden of proving...
Source-derived case information.
- Citation
- [2019] KEELC 1207 (KLR)
- Parties
- Plaintiff: Ruth A. Ogembo; Defendant: Jagdip Bhagwandas Morparia; Defendant: Khimji K. Chabadia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 829 of 2015
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- TM Olando
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Costs, Delay in Application
- 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
Ruth A. Ogembo
Plaintiff
Jagdip Bhagwandas Morparia
Defendant
Khimji K. Chabadia
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution pending appeal was brought without unreasonable delay.
- 2 Whether the applicants demonstrated substantial loss if stay is not granted.
- 3 Whether the applicants provided adequate security for the due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was brought with inordinate delay, approximately 10 months after judgment, and that the applicants did not require proceedings to file the application. The process of execution had already commenced. The applicants failed to discharge their burden of proving substantial loss, as required by law, and did not provide sufficient evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The proposed security was also deemed inadequate. Consequently, the court dismissed the application for stay of execution with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO. 829 OF 2015
RUTH A. OGEMBO...................................................................PLAINTIFF
VERSUS
JAGDIP BHANGWANDAS MORPARIA.....................1ST DEFENDANT
KHIMJI K. CHABADIA................................................2ND DEFENDANT
RULING
1. Jagdip Bhagwandas Morparia and Khimji K. Chabadia being Judgment Debtors have come to this court against Ruth A. Ogembo, the decree holder for stay of execution of the decree and sale of the properties attached pending the hearing and determination of the intended appeal. Moreover, that a warrant of attachment and notice of sale of property issued to Demigen Auctioneers be recalled, revoked and or set aside. They pray for costs.
2. The application is based on the grounds that Judgment was delivered on 7/12/2018 in favour of the decree holder. The applicant is dissatisfied with the judgment and intends to appeal.
3. The applicant filed notice of Appeal on 7/12/2018 and served the same and on the same date requested for copies of proceedings and has not received the same.
4. The respondent has instructed Demigen Auctioneers to proclaim the properties of the applicant which they have done. The applicant prays that the status quo be maintained pending the outcome of Appeal.
5. Mr. Munuang’o, learned counsel for Applicant states that the application has been brought within reasonable time since 7/12/2018. The delay is due to the fact that Deputy Registrar failed to avail typed proceedings in good time. He submitted that the applicant is likely to suffer substantial loss if stay is not granted as the respondent is not a person of means. Lastly the applicant is ready to provide security of Kshs. 500,000/=.
6. Mr. Emukule learned Counsel for the responded opposes the application on grounds that the matter has been before the Deputy Registrar for assessment of costs and that there were indications that it would be settled. Moreover, that there is inordinately delay and that payment of Kshs. 500,000/= is not sufficient as he is seeking the entire Kshs. 1,317,820.
7. On substantial loss, he avers that there is no evidence that the respondent is a person of no means.
8. I have carefully considered the application, rival submissions and do find that the application is brought with inordinate delay of approximately 10 months after Judgment. The applicant did not require proceedings to file the application for stay of execution pending appeal. The application is brought when the process of execution has been initiated.
9. On substantial loss, it is the applicant’s burden to demonstrate that the respondent will not be able to refund the decretal sum and not the respondent’s burden to prove that she will be able to pay. The applicant has not proved as required by law.
10. I do find that the application is brought belatedly and no proof of substantial loss and therefore the same is dismissed with costs.
Orders accordingly.
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
DATED AND DELIVERED THIS 24THDAY OF OCTOBER, 2019.
In the presence of:
Mr. Munwoyo for Defendant
Mr. Toyo for Plaintiff
A. O. OMBWAYO
ENVIRONMENT & LAND
JUDGE