[2005] KEHC 2005 (KLR)
The court found that while there was delay in bringing the application for stay of execution, it was not so inordinate as to preclude the exercise of judicial discretion. However, the applicant failed to demonstrate substantial loss, as financial difficulties alone do not suffice, and the security offered (copies of...
Source-derived case information.
- Citation
- [2005] KEHC 2005 (KLR)
- Parties
- Plaintiff: Samuel K. S; Plaintiff: Hema Investments Ltd; Defendant: Kenya Industrial Estates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 994 of 1998
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Satisfaction of Decree
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Delay in Application, Security for Decree, Substantial Loss, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel K. S
Plaintiff
Hema Investments Ltd
Plaintiff
Kenya Industrial Estates
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Satisfaction of Decree
Legal Issues
- 1 Whether the delay in filing the application for stay of execution is so inordinate as to bar the grant of stay.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether adequate security for the due performance of the decree has been offered.
Ratio Decidendi
The court found that while there was delay in bringing the application for stay of execution, it was not so inordinate as to preclude the exercise of judicial discretion. However, the applicant failed to demonstrate substantial loss, as financial difficulties alone do not suffice, and the security offered (copies of title deeds) was inadequate since there was no evidence that the properties were unencumbered. The court therefore granted a conditional stay: the decretal amount of Kshs 20 million must be paid into an interest-bearing account in the names of the parties' advocates within 60 days, failing which execution would proceed. Costs were awarded to the respondent.
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution granted on condition that the decretal amount of Kshs 20 million is paid into an interest-bearing account in the names of the parties' advocates within 60 days from the date of the ruling.
- If the condition is not met, execution will issue.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 994 of 1998
SAMUEL K. S……………………………….………...…..1ST PLAINTIFF
HEMA INVESTMENTS LTD………………..………….2ND PLAINTIFF
VERSUS
KENYA INDUSTRIAL ESTATES…………...…………...DEFENDANT
RULING
The application is to stay execution of the decree herein for an award of an amount in excess of Kshs 20 Million.
There has been delay in the making of the application by the Applicant made on the 30/9/2004 in respect of a judgment delivered on 21/1/04.
A court will refuse an application for stay where there has been unreasonable delay. This however can be balanced against the merits of the matter. In a deserving case a court can in its discretion forgive delay. I do not find the delay in this matter so inordinate that l will not exercise my discretion if l am of the view that the merits deserve an order.
However, the substantial loss submitted is that the Applicant has financial problems. This is not a reason for an order. In this case, l accept that the Defendant is not a man of straw and could repay the decretal amount.
So far as security is concerned, a number of copies of title deeds have been exhibited; however, there is nothing to say that these are unencumbered as Mr. Omita submits. I do not see that substantial loss has been demonstrated and that adequate security has been offered.
I will grant a stay on condition that if the decretal amount of Kshs 20 Million is paid into an interest bearing account in the names of the parties’ advocates within 60 days from today a stay will be granted failing which execution will issue. Costs to the Respondent.
DATED AND DELIVERED AT NAIROBI ON 17TH January 2005. P.J RANSLEY JUDGE