[2008] KEHC 1037 (KLR)
The court found that the applicant failed to demonstrate substantial loss or provide evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The respondent, on the other hand, provided sufficient evidence of her financial means, including her salary and directorship in a...
Source-derived case information.
- Citation
- [2008] KEHC 1037 (KLR)
- Parties
- Applicant: Stephen Njihia Mbugua; Respondent: Nisha Van Hoek
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 362 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Decree, Monetary Decree, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Njihia Mbugua
Applicant
Nisha Van Hoek
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the respondent has the means to refund the decretal sum if the appeal succeeds.
- 3 Whether the applicant has provided sufficient security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss or provide evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The respondent, on the other hand, provided sufficient evidence of her financial means, including her salary and directorship in a company. The applicant's apprehensions were unsupported by evidence, and the court was satisfied with the respondent's averments on oath. Consequently, the application for stay of execution was dismissed for lack of merit.
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
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 362 of 2008
STEPHEN NJIHIA MBUGUA...…………...………APPLICANT
VERSUS
NISHA VAN HOEK………...…………………..RESPONDENT
R U L I N G
Stephen Njihia Mbugua (hereinafter referred to as the applicant), seeks inter alia, an order of stay of execution of the decree arising from the judgment delivered on 11th June, 2008 by the Senior Principal Magistrate Miss Maina. The applicant has lodged an appeal against that judgment and believes that his appeal has high chances of success. The applicant is however apprehensive that unless the order for stay of execution is granted the appeal may be rendered nugatory and he will suffer substantial loss. The applicant intimates that he is willing and ready to offer substantial security.
Nisha Van Hoek, who is the respondent, has filed a replying affidavit contending that the applicant has not established that he will suffer substantial loss in the event that an order for stay of execution is not granted. The respondent maintains that she earns a regular income and is able to pay the decretal sum should that become necessary. In support of this contention, the respondent has exhibited copies of her pay slip showing her net monthly salary at Kshs.204,388/=. The respondent has also annexed a Memorandum and Articles of Associating of a company of which she is a director.
Under Order XLI Rule 4(2) of the Civil Procedure Rules, it is imperative that an applicant for an order for stay of execution pending appeal satisfies the court that substantial loss is likely to result to him if the order for stay of execution is not granted. In this case, the applicant has averred that if the order for stay is not granted, he will suffer substantial loss as his appeal will be rendered nugatory. Apart from the memorandum of appeal, the applicant has not availed a copy of the ruling of the lower court so as to demonstrate to the court his contention that his appeal has high chances of success or in what way the appeal is likely to be rendered nugatory.
The respondent on the other hand, has averred that the appeal is a monetary decree for the sum of Kshs.867,000/= which she is willing and able to refund if required to as she has sufficient resources. The respondent has gone further and exhibited her income. Although the applicant maintains that the respondent has not revealed her corresponding expenditure, or any audited statements of account for the company she is purportedly working for, I am satisfied that the applicant has not shown any good justification as to why the court should doubt the respondent’s averments which are on oath. The applicant has provided no evidence to support his apprehension regarding the means of the respondent or the company for which the respondent works. I find that the respondent has sufficiently demonstrated her ability to repay the money. The applicant has totally failed to satisfy this court that he will suffer any substantial loss if the order for stay of execution is not issued. For this reason I find no merit in the application and do accordingly dismiss it with costs.
Those shall be the orders of this court.
Dated and delivered this 3rd day of November, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Njenga for the applicant
Miss Oduor for the respondent