[2009] KEHC 2532 (KLR)
The court found that the applicants failed to demonstrate that they would suffer substantial loss if the stay was not granted, as mere execution of the decree does not render the appeal nugatory, especially since the respondent is financially capable of refunding the decretal sum. The court also held that the...
Source-derived case information.
- Citation
- [2009] KEHC 2532 (KLR)
- Parties
- Appellant: Stephen Gesaiga; Appellant: Silvanus Oroo Omboga; Respondent: E.A. Portland Cement Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 788 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Performance, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Gesaiga
Appellant
Silvanus Oroo Omboga
Appellant
E.A. Portland Cement Co. Ltd.
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the application for stay of execution was brought without undue delay.
- 3 Whether the applicants have offered security for the due performance of the decree.
Ratio Decidendi
The court found that the applicants failed to demonstrate that they would suffer substantial loss if the stay was not granted, as mere execution of the decree does not render the appeal nugatory, especially since the respondent is financially capable of refunding the decretal sum. The court also held that the explanation for the delay in filing the application was unsatisfactory, with no evidence provided regarding the timing of instructions to counsel or efforts to follow up on the application. The applicants did not offer security for the due performance of the decree. Consequently, the application did not satisfy the requirements under Order XLI Rule 4(2) of the Civil Procedure Rules...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 23rd February 2009 is dismissed with costs.
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 788 of 2007
STEPHEN GESAIGA
SILVANUS OROO OMBOGA……………...….APPELLANTS
VERSUS
E.A. PORTLAND CEMENT CO. LTD….……RESPONDENT
R U L I N G
1. Stephen Gesaiga and Silvanus Oroo Omboga hereinafter referred to as the Applicants are the appellants in this appeal. By a Notice of Motion dated 23/2/09, the Applicants seeks an order for stay of execution of the judgment and decree pending determination of their appeal.
2. The Applicants maintain that unless the order of stay of execution is granted, their appeal which has high chances of success will be rendered nugatory.
3. Silvanus Oroo Omboga has also sworn a supporting affidavit in which he explains that if execution proceeds he would suffer irreparable loss as his only source of livelihood will be disposed off.
4. The application is opposed through grounds of opposition filed on 22nd April 2009 as well as a replying affidavit sworn by Eric Chelule on the same day. Chelule who is a licensing and Insurance Officer of East Africa Portland Cement Co. Ltd., (the Respondent herein) maintains that the Respondent is a big company listed in the stock market and is capable of paying back the decretal sum incase the appeal succeed.
5. It is submitted on behalf of the Respondent that the Applicants have offered no security for the performance of the decree and have also failed to demonstrate substantial loss. Further it is contended that the application for stay of execution pending appeal having been brought more than one year after the appeal, the same was brought after unreasonable delay.
6. I have carefully considered the application before me. For the Applicants to succeed, they must satisfy the conditions of OXLI Rule 4(2) of the Civil Procedure Rules i.e (1) The Applicant must show that they will suffer substantial loss if the order of stay of execution is not granted (2) Application must have been brought without undue delay (3) Applicants must be ready to furnish security for the due performance of the decree.
7. In this case, the Applicant claims that they will suffer substantial loss as their appeal is likely to be rendered nugatory. However the Applicants appeal cannot be rendered nugatory by the mere execution of the decree. The Applicant has not shown that the Respondents will not be able to restitute the decretal sum should that become necessary.
8. Further although the Applicants have endeavoured to explain the apparent delay in filing their application that explanation is not satisfactory at all. Nothing has been exhibited to this court to show when the Applicants instructed their advocate to file the application for stay of execution in this court nor has there been any evidence of any efforts made by the Applicants to know the outcome of such an application. It is evident that the Applicants went to sleep after filing their appeal and only woke up when the Respondent initiated the execution proceedings.
9. For the above reasons I find no merit in the Notice of Motion dated 23rd February 2009 and do therefore dismiss the same with costs.
Delivered and dated at Nairobi this 19th day of June, 2009
H. M. OKWENGU
JUDGE
Delivered in the presence of:-
Nyabicho for the appellants
Kariuki H/B for the respondent
Erick – court clerk