[2007] KEHC 3069 (KLR)
The court held that the applicant had not filed a valid notice of appeal within the prescribed time limits, which is a prerequisite for the grant of a stay of execution pending appeal. Furthermore, the applicant failed to file the application expeditiously and did not offer any security for the due performance of...
Source-derived case information.
- Citation
- [2007] KEHC 3069 (KLR)
- Parties
- Plaintiff: Watatu Development Limited; Defendant: Malibu Safaris Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 161 of 2005
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Notice of Appeal, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Watatu Development Limited
Plaintiff
Malibu Safaris Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal in the absence of a valid notice of appeal.
- 2 Whether the applicant has satisfied the requirements under Order 41 Rule 4 for grant of stay of execution.
Ratio Decidendi
The court held that the applicant had not filed a valid notice of appeal within the prescribed time limits, which is a prerequisite for the grant of a stay of execution pending appeal. Furthermore, the applicant failed to file the application expeditiously and did not offer any security for the due performance of the decree as required by Order 41 Rule 4. The court emphasized that entertaining applications without a valid notice of appeal would encourage frivolous litigation and unjustly delay the decree holder's enjoyment of the fruits of the decree. Consequently, the application was found to be frivolous and without merit, leading to its dismissal with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 161 of 2005
WATATU DEVELOPMENT LIMITED………………………..PLAINTIFF
VERSUS
MALIBU SAFARIS LIMITED………………………………DEFENDANT
R U L I N G
This is an application for stay of execution pending the filing and determination of the appeal which the Defendant wishes to prefer to the Court of Appeal against the judgment of this court delivered by Sergon J on 3rd November 2006.
It is not in doubt that anyone wishing to appeal to the Court of Appeal against any decision of the High Court has to file and serve a notice of appeal within the periods specified in Rules 74(2) and 76 of the Court of Appeal Rules. In this case it is admitted by the Applicant that it filed and served its notice of appeal out of time. So there is no valid notice of appeal.
Bearing in mind that a decree holder is entitled to enjoy the fruits of his decree, in an application like this the High Court must require and insist on proof of there being a valid notice of appeal. Failure to do that will mean entertaining frivolous applications intended to deny or delay the decree holders’ enjoyment of the fruits of his decree.
Order 41 Rule 4 under which this application is brought requires in mandatory terms inter aliathat the Applicant should not only expeditiously file the application but should also provide security for the due performance of the decree in event the appeal is dismissed. The Applicant has not met either of these requirements. He filed this application almost one month after the decision he wants to appeal against had been delivered and has not offered any security.
This application is not only frivolous but has also no merit at all and is accordingly hereby dismissed with costs.
DATED and delivered this 8th day of February 2007
D.K. MARAGA
JUDGE