[2006] KEHC 2187 (KLR)
The court found that the applicant failed to comply with the requirements of Order 41 Rule 4 of the Civil Procedure Rules. Specifically, the applicant did not offer any security for the due performance of the decree and did not demonstrate that payment of the decretal sum to the respondent would render the appeal...
Source-derived case information.
- Citation
- [2006] KEHC 2187 (KLR)
- Parties
- Appellant: Stanley Njau Wainaina; Respondent: Meshack M. Munyalo; Respondent: Benjamin Mwikua Musyoki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 733 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution pending appeal dismissed with costs to the respondents
- Legal Topics
- Stay of Execution, Security for Costs, Substantial Loss, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Njau Wainaina
Appellant
Meshack M. Munyalo
Respondent
Benjamin Mwikua Musyoki
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the applicant has provided security as required by law.
Ratio Decidendi
The court found that the applicant failed to comply with the requirements of Order 41 Rule 4 of the Civil Procedure Rules. Specifically, the applicant did not offer any security for the due performance of the decree and did not demonstrate that payment of the decretal sum to the respondent would render the appeal nugatory or that the respondent was not a person of means. The court held that the applicant did not show substantial loss as required by law, and therefore, the application for stay of execution pending appeal could not be granted.
Court Disposition
application for stay of execution pending appeal dismissed with costs to the respondents
Orders
- The application for stay pending appeal is dismissed with costs to the respondents and against the appellant/applicant for failure to meet the requirements of the law.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 733 of 2005
STANLEY NJAU WAINAINA…………………...............................………… APPELLANT
VERSUS
MESHACK M. MUNYALO
BENJAMIN MWIKUA MUSYOKI…………........................................….RESPONDENTS
R U L I N G
This Notice of Motion, dated 22/9/05 under Order 41 Rule 4; Order 50 Rule 1 of the Civil Procedure Rules, and Sections 3A, 63(e), 79 (G) and 95 of Cap. 21, Laws of Kenya, seeks the following orders:
1. )
2. ) ….Already spent
3. Stay of execution of the Court order dated 31/8/05 in Kithimani – Yatta RMCC No. 134 of 2004, pending the appeal herein.
4. Costs to be in the cause.
The application is on the grounds stated on the face of the Notice of Motion, and is supported by an Affidavit by Stanley Wainaina Njau dated 23/9/05.
In opposition, the Respondents, through their Replying Affidavit filed on 24/10/05 aver, inter alia that application lacks merit and is meant to delay the realization by the Respondents of their fruits of the judgement, and that the Respondent is a person of means and payment of the decretal sum would not render the appeal, if it succeeds, nugatory.
In the cause of the hearing of the application, it became clear that the applicant has not complied with the tenents of Order 41 Rule 4 of the Civil Procedure Rules, in that he has not offered any security, no shown that if the sum is paid to the Respondent, prior to the appeal, the same will have been put beyond the reach of the appellant as the Respondent is not a person of means. This is what is referred to in the Order and Rule above, a substantial loss.
After due perusal and consideration of the pleadings herein, and the submissions by counsel for both sides, this court rules as under:
1. That application for stay pending appeal is hereby dismissed with costs to the Respondent and against the appellant/applicant for failure to meet the requirements of the law under which it is brought.
DATED and delivered in Nairobi this 20th day of June, 2006.
O.K. MUTUNGI
JUDGE