[2012] KEHC 2179 (KLR)
The court found that although the appellants applied for stay of execution without unreasonable delay and offered security, they failed to demonstrate that they would suffer substantial loss if the stay was not granted. The respondent's gainful employment negated any presumption that he would be unable to refund the...
Source-derived case information.
- Citation
- [2012] KEHC 2179 (KLR)
- Parties
- Appellant: Walter Odhiambo Nyangori; Appellant: Willy Tanui; Respondent: McDonald Kandoro Kai
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- CW Meoli
- 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
Walter Odhiambo Nyangori
Appellant
Willy Tanui
Appellant
McDonald Kandoro Kai
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have demonstrated substantial loss that would result if stay of execution is not granted.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether the appellants have provided adequate security for the due performance of the decree.
Ratio Decidendi
The court found that although the appellants applied for stay of execution without unreasonable delay and offered security, they failed to demonstrate that they would suffer substantial loss if the stay was not granted. The respondent's gainful employment negated any presumption that he would be unable to refund the decretal sum. The court emphasized that denying a successful litigant the fruits of his judgment requires just cause, which was not established in this case. Consequently, the application for stay of execution was dismissed with costs to the respondent.
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
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
Civil Appeal 3 of 2012
WALTER ODHIAMBO NYANGORI
WILLY TANUI ….............................................. APPELLANTS
VERSUS
MCDONALD KANDORO KAI …....................RESPONDENT
R U L I N G
1. The appellant\'s application dated 8th March, 2012 is brought under Order 42 rule 6 of the Civil Procedure Rules principally. It seeks to stay execution of the judgment/decree obtained in Kilifi\'s SRMCC 132 of 2010 pending appeal. The application is supported by the affidavit of Everylne Onzere. Like the replying affidavit of the respondent the supporting affidavit dwells at length on the merits of the appeal, whereas sub rule 2 of Order 42 rule 6 Civil Procedure Rules, defines the parameters to guide the court in an application of this nature. It provides:
“(2) No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
2. An application for stay of execution in the Court of Appeal is governed by Rule 5 of the Court\'s Rules which requires inter alia that the applicant demonstrates an arguable appeal. This was the subject of the decision in National Industrial Credit Bank Ltd. V Aquinas Francis Wasike (2006)e KLR, upon which the appellant herein has placed reliance.
3. After reviewing the facts of this case, I am of the view that the appellant\'s application lacks merit. While there is no doubt that the appellant has come to court without any unreasonable delay and they have offered security, there is no evidence of the likelihood of substantial loss to the appellant. The appellants have disclosed that the respondent is gainfully employed as a chef, and thereby negating any assumption that he is a man of straw, incapable of refunding the decretal submission which at any rate is not a very large amount of money. There must be just cause for denying a successful litigant the fruits of his judgment. Such has not been demonstrated int his case.
The application is dismissed with costs.
Delivered and signed at Malindi on this 2ndday of October, 2012 in the presence of Mr. Shujaa holding brief for Mr. Njoroge for the respondent, Ms. Njebiu for the appellant.
C. W. Meoli
JUDGE