[2004] KEHC 427 (KLR)
The court found that the applicants failed to demonstrate, through affidavit or otherwise, that they would suffer substantial loss if a stay of execution was not granted. Furthermore, the appeal was filed out of time and the applicants did not provide any explanation for the delay, as required by Section 79G of the...
Source-derived case information.
- Citation
- [2004] KEHC 427 (KLR)
- Parties
- Appellant: Stephen Wanderi Kamau; Appellant: Sofitra Limited; Respondent: Gladys Wanjiku Kungu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 184 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Extension of Time to File Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Extension of Time, Appeals Process, Substantial Loss Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Wanderi Kamau
Appellant
Sofitra Limited
Appellant
Gladys Wanjiku Kungu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicants demonstrated substantial loss as required for a stay of execution.
- 2 Whether the applicants provided sufficient reasons for delay in filing the appeal out of time.
- 3 Whether the application for extension of time and stay of execution should be granted.
Ratio Decidendi
The court found that the applicants failed to demonstrate, through affidavit or otherwise, that they would suffer substantial loss if a stay of execution was not granted. Furthermore, the appeal was filed out of time and the applicants did not provide any explanation for the delay, as required by Section 79G of the Civil Procedure Act. The delay in making the application was also deemed unreasonable and unexplained. Consequently, the court agreed with the respondent's counsel that the application lacked merit and dismissed it with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution and extension of time to file appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 184 OF 2003
STEPHEN WANDERI KAMAU……………………1ST APPELLANT
SOFITRA LIMITED…………………………………2ND APPELLANT
VERSUS
GLADYS WANJIKU KUNGU………………………RESPONDENT
RULING
By an application brought by way of a Notice of Motion under Order XLI rule 4 and Order L rule 12 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the applicants prayed for stay of execution of the judment pronounced on 26th Septemer, 2003 in Nakuru C.M.C.C. No. 1830 of 2002. They also prayed that the time allowed for filing of the appeal be extended.
In the affidavit sworn in support of the said application, it wa not stated that the applicants would suffer substantial loss if the application was not granted. Subsantial loss has to be proved in an appliction for stay of execution.
The purported appeal was filed on 19th November, 2003. No reason was stated as to why it was filed out of time contrary to the provisions of Section 79G of the Cvil Procedure Act. There was also unreasonable dealy in making the said applicationa d the delay was not explained at all.
I am in agreement with Mr. Oraro, the learned cousnelf or the respondent that for the aforesaid reasons the said application is for dismissal and I hereby dismiss the sam with costs to the respondent.
DATED, SIGNED & DELIVERED at Nakuru this ……………..ay of …………….2004.
DANIEL MUSINGA
AG. JUDGE