[2004] KEHC 2268 (KLR)
The court found that the applicant failed to satisfy the mandatory requirements for the grant of stay of execution under Order 41 Rule 4 of the Civil Procedure Rules. Specifically, the applicant did not demonstrate what substantial loss would be suffered if stay was not granted, failed to offer any security for the...
Source-derived case information.
- Citation
- [2004] KEHC 2268 (KLR)
- Parties
- Appellant: Salome Nduta; Respondent: Ruth Njeri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 335 of 1993
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- ARM Visram
- Legal Topics
- Stay of Execution, Appeals, Res Judicata, Out of Time Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salome Nduta
Appellant
Ruth Njeri
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether the application for stay was filed without undue delay.
- 3 Whether the applicant has demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant failed to satisfy the mandatory requirements for the grant of stay of execution under Order 41 Rule 4 of the Civil Procedure Rules. Specifically, the applicant did not demonstrate what substantial loss would be suffered if stay was not granted, failed to offer any security for the due performance of the decree, and filed the application with inordinate delay of 11 months. The court held that in the absence of compliance with these requirements, it had no discretion to grant the stay sought. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPLICATION 335 of 93
SALOME NDUTA …………………………………… .APPELLANT
VERSUS
RUTH NJERI ……………………………………………RESPONDENT
RULING
This is an application for stay of execution under O. 41 R. 4 of the Civil Procedure Rules.
On August 11, 2000, Mr. Justice Amin dismissed this appeal on the grounds that it had been filed out of time (by eight years); that it was Res Judicata and that it was “devoid of merit”.
On August 24, 2000 the Appellant filed a notice of appeal in the Court of Appeal, and is presently before this Court to stay the execution of Justice Amin’s Judgment of August 11, 2000. His Counsel argued that the intended appeal has good chances of success, and cited the case of Khayadi V. Aganda (1988) KLR 204.
In an application for stay under O.41 R. 4, the Applicant would succeed if he demonstrates to the satisfaction of this Court that substantial loss will ensue if the 0rder of stay is not granted; that he has filed the application without undue delay; and that he has offered such security as may be ordered for the due performance of the decree. The onus is on the Applicant to discharge the above through a deposition.
The Applicant has not complied with the above conditions for this Court to exercise its discretion to grant the stay sought. The Applicant has not told this Court how and what substantial loss, if any, he will suffer if the order were not granted; he has made absolutely no offer of any security; and his application was filed 11 months late, which I regard as inordinate delay.
Accordingly, this application is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 28th day of April, 2004.
ALNASHIR VISRAM
JUDGE