[2012] KEHC 4059 (KLR)
The court found that the appellant failed to demonstrate that he would suffer substantial loss if stay was not granted and did not offer any security for the due performance of the decree. Although the application was brought within reasonable time, the appellant's failure to meet the mandatory requirements under...
Source-derived case information.
- Citation
- [2012] KEHC 4059 (KLR)
- Parties
- Appellant: Shida Ngumbao Ndurya; Respondent: Mary Kadzo Kalume
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- CW Meoli
- Legal Topics
- Stay of Execution, Appeals Process, Vacant Possession, Security for Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shida Ngumbao Ndurya
Appellant
Mary Kadzo Kalume
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 2 Whether the appellant has demonstrated substantial loss if stay is not granted.
- 3 Whether the appellant has provided security for due performance of the decree.
Ratio Decidendi
The court found that the appellant failed to demonstrate that he would suffer substantial loss if stay was not granted and did not offer any security for the due performance of the decree. Although the application was brought within reasonable time, the appellant's failure to meet the mandatory requirements under Order 42 Rule 6(2) of the Civil Procedure Rules rendered the application without merit. The court emphasized that the material presented did not justify denying the respondent the fruits of her judgment, especially since the appellant had previously made similar applications without seeking to set aside the original judgment.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
Civil Appeal 38 of 2011
SHIDA NGUMBAO NDURYA...................................APPELLANT
=VERSUS=
MARY KADZO KALUME.....................................RESPONDENT
RULING
1. The appellant’s notice of motion filed on 14/12/11 was disposed of by way of written submissions. It was an application for stay of execution pending appeal under order 42 rule 6 (1) and of the (2) Civil Procedure Rules. The appeal was filed in respect of the decision of the Chief Magistrate made on 28th September, 2011 respecting execution of the decree for vacant possession.
2. I have considered the affidavits filed in respect of the application as well as the written submissions. I note that the appeal herein is in respect of the ruling of the Lower Court regarding execution, but not against the actual decree for vacant possession. Hence the Respondents are entitled to question the efficacy of the present application as they have. Moreover, the judgment giving rise to the decree in the lower court was given in January 2009. Since then the appellant has made at least two applications to stay execution while not making any effort to set aside the said judgement, which he says was a culmination of exparte proceedings (See Supporting affidavit to Appellant`s Chamber Summons filed on 12/2/09 in Malindi SRMCC No.264/04)
3. Be that as it may, under O42 r 6 (2) Civil Procedure Rule;-
“No orders for stay of execution shall be made under subrule (1)unless;-
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delays; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.
While the present application was brought within good time, the applicant has not demonstrated that he will suffer substantial loss if the orders he seeks are declined. Instead, he has deponed that his appeal has good chances of success and that the appeal will be rendered nugatory if the orders are denied. Nor has he offered any security for performance of the decree.
4. Clearly, the present application has been lodged in a rather casual manner, and in my view the material presented does not justify an order denying the Respondent the fruits of his judgement. The application is dismissed with costs for want of merit.
Dated, signed and delivered at Malindi this 6th day of June, 2012
In the presence of Mr. Otara for appellant, Mr. Shujaa for respondent.
C. W. MEOLI
JUDGE