[2004] KEHC 2396 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, did not offer any security for due performance, and delayed in bringing the application without explanation. The cumulative failure to satisfy the mandatory requirements under Order 41 Rule 4 of the...
Source-derived case information.
- Citation
- [2004] KEHC 2396 (KLR)
- Parties
- Appellant: Teresia Kimani; Respondent: Githere Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 944 of 2003
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Kimani
Appellant
Githere Investments Limited
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant demonstrated substantial loss would occur if stay is not granted.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant offered security as required under Order 41 Rule 4.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, did not offer any security for due performance, and delayed in bringing the application without explanation. The cumulative failure to satisfy the mandatory requirements under Order 41 Rule 4 of the Civil Procedure Rules meant the applicant was not entitled to a stay of execution. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 944 OF 2003
TERESIA KIMANI ……………………………………….. APPELLANT VERSUS GITHERE INVESTMENTS LIMITED …………….…. RESPONDENT
RULING
This is an application for stay of execution of the Judgment of the Business Premises Tribunal in Case No 261 of 2002 made on November 21, 2003 pending the hearing and determination of this appeal.
In its Judgment, the Tribunal ordered the Applicant to vacate the suit premises by February 28, 2004. One day before that date, that is on February 27, 2004, the Applicant filed an application under Certificate of Urgency for an order that status quo be maintained pending the hearing and determination of her appeal.
That application was struck out as being incompetently before the Court. On April 21, 2004, the Applicant filed another application for similar orders, and this time prayed for stay of execution pending appeal.
In an application for stay under Order 41 Rule 4, the Applicant will succeed if he or she demonstrates to the satisfaction of this Court that substantial loss will ensue if the order of stay is not granted; that he has filed the application without undue delay; and that he has offered such security as may be ordered. The onus is to the Applicant to discharge the above through a deposition.
A stay order does not lie as a matter of course just because one has filed an appeal. One has to demonstrate the likelihood of suffering substantial loss if the order is refused. There is no evidence of substantial loss demonstrated in this application. The Applicant must also be willing to furnish security. There is no such offer made. Finally, the application must have been made without unreasonable delay. Here, the first application was made in this Court three months after the judgment was read. No explanation was offered for the delay.
All in all, I am satisfied that the applicant has not satisfied the conditions for stay outlined in Order 41 Rule 4, and accordingly the application is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 26th day of May, 2004.
ALNASHIR VISRAM
JUDGE