[2007] KEHC 707 (KLR)
The court found that the appellant failed to demonstrate that she would suffer substantial loss if the stay was not granted, as required by Order 41, rule 4(2) of the Civil Procedure Rules. The court noted that there was no evidence that the decree of the lower court, which was in the appellant's favour, had been...
Source-derived case information.
- Citation
- [2007] KEHC 707 (KLR)
- Parties
- Appellant: Waiganjo Ndagutha; Respondent: Margaret Wanjiru Njoro
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 26 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Second Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Appeals Process, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waiganjo Ndagutha
Appellant
Margaret Wanjiru Njoro
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Second Appeal
Legal Issues
- 1 Whether the appellant is entitled to an order for stay of execution of the decree pending a second appeal to the Court of Appeal.
- 2 Whether the appellant has demonstrated substantial loss as required under Order 41, rule 4(2) of the Civil Procedure Rules.
- 3 Whether the application for stay was made without unreasonable delay and if the appellant is prepared to give security for due performance.
Ratio Decidendi
The court found that the appellant failed to demonstrate that she would suffer substantial loss if the stay was not granted, as required by Order 41, rule 4(2) of the Civil Procedure Rules. The court noted that there was no evidence that the decree of the lower court, which was in the appellant's favour, had been executed. Therefore, there was nothing to stay, and granting a stay would only serve to keep alive a suit that had already been dismissed. Consequently, the application for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)
Civil Appeal 26 of 2003
WAIGANJO NDAGUTHA ……………………..……..……...APPELLANT
V E R S U S
MARGARET WANJIRU NJORO ……………………..….RESPONDENT
R U L I N G
The Appellant has sought by chamber summons dated 4th April, 2007 an order for stay of execution of the decree herein pending a second appeal to the Court of Appeal. Notice of appeal has been duly lodged. The decree of this court appealed against was passed on 22nd March, 2007. By it the first appeal to this court was allowed and the judgment of the lower court set aside. The judgment of the lower court had declared the Respondent (who was the plaintiff) to be the rightful owner of the subject parcel of land.
The effect of this court’s decree which set aside the lower court judgment was to dismiss the plaintiff’s suit. What is sought in this application, therefore, is in effect, an order to stay the dismissal of the plaintiff’s suit.
I have read the two affidavits sworn in support of the application as well as the two affidavits sworn in reply. I have also given due consideration to the submissions of the learned counsels appearing. The application is brought under Order 41, rule 4 of the Civil Procedure Rules (the Rules). Under sub-rule (2) of that rule, the Appellant must demonstrate that he stands to suffer substantial loss unless the order of stay is granted; that the application for stay has been made without unreasonable delay; and that he is prepared to give such security as the court may order for the due performance of such decree or order as may ultimately be binding on him.
The Appellant has not demonstrated that she stands to suffer any substantial loss. Indeed, I doubt that a party will suffer substantial loss merely because his suit has been dismissed. But the court can, in appropriate circumstances, issue stay where dismissal of the suit has been ordered on appeal. In the present case the Appellant ought to have demonstrated that the decree of the lower court, which was in her favour (and which was set aside by the decree herein), had been duly executed; otherwise what is there to be stay? There is no evidence that the decree of the lower court had been duly executed. A stay of execution as sought would have the effect only of keeping alive the plaintiff’s suit in the lower court, which suit has already been dismissed.
I will therefore refuse the present application. It is hereby dismissed with costs to the Respondent.
DATED AT NAIROBI THIS 23RD DAY OF JULY 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 27TH DAY OF JULY 2007