[2017] KEHC 1650 (KLR)

[2017] KEHC 1650 (KLR)

The court found that while the application for stay of execution was filed promptly, the appellant failed to demonstrate substantial loss as required by law. The appellant's claims of being a breadwinner and of meagre means were not substantiated, especially in light of evidence that he owns rental properties and a...

Source-derived case information.

Citation
[2017] KEHC 1650 (KLR)
Parties
Appellant: Stephen Kamau Kiminda; Respondent: EWN (Minor Suing through the father and next friend JNN)
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Case Number
Civil Appeal 286 of 2017
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal
Outcome
Application for stay of execution dismissed; leave to appeal granted; costs to respondent.
Judges
LM Njuguna
Legal Topics
Stay of Execution, Committal to Civil Jail, Security for Due Performance, Substantial Loss, Appeals Process
Source Language
en
Civil Procedure Tort Law Stay of Execution Committal to Civil Jail Security for Due Performance Substantial Loss Appeals Process

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Parties

Stephen Kamau Kiminda

Appellant

EWN (Minor Suing through the father and next friend JNN)

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Stay of Execution and Leave to Appeal

Legal Issues

  1. 1 Whether the appellant has met the legal threshold for grant of stay of execution pending appeal.
  2. 2 Whether the appellant should be granted leave to appeal out of time and the appeal deemed as duly filed.
  3. 3 Whether the appellant has demonstrated substantial loss and provided security as required under Order 42 Rule 6(2) of the Civil Procedure Rules.

Ratio Decidendi

The court found that while the application for stay of execution was filed promptly, the appellant failed to demonstrate substantial loss as required by law. The appellant's claims of being a breadwinner and of meagre means were not substantiated, especially in light of evidence that he owns rental properties and a farm. The appellant also failed to offer any security for the due performance of the decree. The court held that the legal threshold for granting a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules was not met. However, the court granted the appellant leave to appeal as prayed, but dismissed the application for stay of execution. Costs were awarded to the...

Court Disposition

Application for stay of execution dismissed; leave to appeal granted; costs to respondent.

Orders

  • The application for stay of execution is dismissed.
  • The appellant is granted leave to appeal as prayed in prayer 2 of the application.