[2007] KEHC 2274 (KLR)
The court found that the applicant failed to discharge the burden of demonstrating what substantial loss would be suffered if the stay of execution was not granted. The affidavits filed in support of the application did not address the nature of the substantial loss or provide evidence that the respondent would be...
Source-derived case information.
- Citation
- [2007] KEHC 2274 (KLR)
- Parties
- Appellant: Samwel Kiliungu Isaac; Appellant: Teresa Kiliungu; Respondent: David Muthiaine
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 2007
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Substantial Loss, Burden of Proof, Money Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kiliungu Isaac
Appellant
Teresa Kiliungu
Appellant
David Muthiaine
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss that would result if stay of execution is not granted.
- 2 Whether the application for stay of execution was brought without unreasonable delay.
- 3 Whether the applicant has provided adequate security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant failed to discharge the burden of demonstrating what substantial loss would be suffered if the stay of execution was not granted. The affidavits filed in support of the application did not address the nature of the substantial loss or provide evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The court emphasized that, in applications for stay of execution of money decrees, it is not sufficient to merely assert that the appeal will be rendered nugatory; specific evidence of substantial loss must be provided. As the applicant did not meet this threshold, the application for stay of execution was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 11 of 2007
SAMWEL KILIUNGU ISAAC ………………….………… 1ST APPELLANT
TERESA KILIUNGU ……………………….…………….. 2ND APPELLANT
VERSUS
DAVID MUTHIAINE ……………..……..………..………… RESPONDENT
RULING
This application was argued exparteas neither the respondent nor his counsel attended on the day it was argued even though the respondent’s counsel was in attendance when the date was fixed.
The respondent, similarly, has not responded to the application. It is an application for stay of execution of the decree in Maua PMCC No.199 of 2006, pending appeal.
Exparte judgment was entered against the applicant in the sum of Kshs.434, 904/=. The applicant has preferred this appeal against that judgment. However, before the appeal can be heard, he is apprehensive that the respondents may proceed to execute the decree.
A stay of execution pending appeal will be granted if the court is satisfied that the applicant stands to suffer substantial loss if it is not granted. Secondly, the court must be satisfied that the application has been brought without unreasonable delay-and finally it will be granted if the applicant undertakes as to security.
Two affidavits have been filed in support of the application. One is filed by the applicant and the other by the applicant’s counsel. The affidavits are silent on the nature of substantial loss the applicant stands to suffer if an order of stay of execution is not granted. The two affidavits are preoccupied with the events leading to the entry of interlocutory judgment and the merit of the appeal. A part from an averment that the lower court entered judgment in the sum of Kshs.434,904, there is no evidence that the respondents will not be able to refund the same in the event this appeal succeeds.
Both the English Supreme Court Annual Practice, 1965, Page 1284 and Halsbury’s Laws of England 3rd Edition at Page 35 paragraph 51 stress that as a rule a stay will be granted only if there are special circumstances which must be deponed to in affidavit unless the application is made orally at the hearing.
This was the situation in Kenya Shell Ltd V Kibiru and Another(1986) KLR 410 where Platt,Ag JA( as he then was) observed that;
“ I am bound to say that the respondents are right, on the basis of Order XLI Rule 4 of the Civil Procedure Rules. There was no evidence of substantial loss, and such loss cannot be inferred in this case”.
He went on to say that:
“It is not normal in money decree for the appeal to be rendered nugatory, if payment is made. The affidavit in support has not set out any information to show that the appeal will be nugatory. It is loud in its claim that the appeal will fail. But no reasons are given why the appeal will be rendered nugatory”.
The applicant has not discharged the burden to show how the appeal will be rendered nugatory and what substantial loss he will suffer if this application is not granted.
In the result this application fails and is dismissed with no orders as to costs.
DATED AND DELIVERED AT MERU THIS 22ND DAY OF JUNE 2007
W. OUKO
JUDGE