[2007] KEHC 1793 (KLR)
The court found that the appellant neither pleaded nor established by evidence that it would suffer substantial loss if the stay of execution was not granted. The absence of such pleading and evidence is fatal to the application for stay. The court emphasized that the requirements under Order 41, rule 4(2) of the...
Source-derived case information.
- Citation
- [2007] KEHC 1793 (KLR)
- Parties
- Appellant: Siemens Power Transmission and Distribution Ltd; Respondent: Musila Kithuku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 57 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Siemens Power Transmission and Distribution Ltd
Appellant
Musila Kithuku
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant demonstrated substantial loss that would result if stay of execution is not granted.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether the appellant offered security for due performance as required by law.
Ratio Decidendi
The court found that the appellant neither pleaded nor established by evidence that it would suffer substantial loss if the stay of execution was not granted. The absence of such pleading and evidence is fatal to the application for stay. The court emphasized that the requirements under Order 41, rule 4(2) of the Civil Procedure Rules are mandatory, and the applicant must satisfy all of them, including the demonstration of substantial loss and provision of security. Since the appellant failed to meet these requirements, the court declined to exercise its discretion in favour of granting the stay and dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution pending appeal is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 57 of 2007
SIEMENS POWER TRANSMISSION AND DISTRIBUTION LTD........APPELLANT
V E R S U S
MUSILA KITHUKU ………………………………….........................….RESPONDENT
R U L I N G
I have before me an application by notice of motion dated 16th February, 2007 brought under Order 41, rule 4 of the Civil Procedure Rules (the Rules). It seeks stay of execution of the lower court decree passed on 22nd December, 2006 pending hearing and determination of the appeal herein. The application is opposed by the Respondent.
I have considered the submissions of the learned counsels appearing, including the one case cited. I have also read the supporting and replying affidavits. Stay of execution of decree pending appeal will be granted for sufficient cause, but only if 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 delay. The applicant must also give such security as the court may order for the due performance by him of such decree or order as may ultimately be binding on him. See sub-rule (2) of the same rule. It has not been pleaded in the grounds on the face of the application or in the supporting affidavit that the appellant stands to suffer substantial loss if the order of stay sought is not granted.
It was incumbent upon the Appellant to plead and establish by evidence that it stands to suffer substantial loss unless the order of stay of execution is granted. It has neither pleaded nor attempted to show substantial loss. That being the case, the court is unable to exercise its discretion in the Appellant’s favour. I must therefore refuse the application. It is hereby dismissed with costs to the Respondent. Order accordingly.
DATED AT NAIROBI THIS 20TH DAY OF AUGUST, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 24th DAY OF AUGUST, 2007