[2006] KEHC 1392 (KLR)
The court found that the applicants had not filed an appeal to date and that the subject matter of the dispute—the security for the loan—had already been realized by the respondent. As such, the intended appeal had no chances of success, and granting a stay of execution would serve no practical purpose. The...
Source-derived case information.
- Citation
- [2006] KEHC 1392 (KLR)
- Parties
- Plaintiff: William Manyonyi Khamasi; Plaintiff: Leonida Judith Khamisi; Respondent: Housing Finance Company of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1644 of 2001
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Injunctions, Security for Costs, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Manyonyi Khamasi
Plaintiff
Leonida Judith Khamisi
Plaintiff
Housing Finance Company of Kenya Ltd
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the decree for costs pending appeal.
- 2 Whether the applicants have demonstrated an arguable appeal with good chances of success.
- 3 Whether the applicants have provided sufficient security for costs.
Ratio Decidendi
The court found that the applicants had not filed an appeal to date and that the subject matter of the dispute—the security for the loan—had already been realized by the respondent. As such, the intended appeal had no chances of success, and granting a stay of execution would serve no practical purpose. The applicants failed to meet the threshold for the grant of a stay of execution as set out under the Civil Procedure Rules, particularly as there was no demonstration of an arguable appeal or that the appeal would be rendered nugatory without the stay. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution pending appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1644 of 2001
WILLIAM MANYONYI KHAMASI………………….........................................................…….1ST PLAINTIFF
LEONIDA JUDITH KHAMISI……… ……….........................................................………….2ND PLAINTIFF
VERSUS
HOUSING FINANCE COMPANY OF KENYA LTD………………………………....…….RESPONDENT
RULING
The applicant by way of this Notice of Motion dated 22nd March 2006 and expressed to be brought under Order XLI Rule (1) of the civil Procedure Rules and Section 3A of the Civil Procedure Act seeks orders that there be a stay of execution of the decree for costs pending the hearing and determination of the intended appeal against the judgment of 24th February 2004.
The application is based on the grounds that the plaintiffs filed a Notice of Appeal against the decision of 24th February 2006 and applied for certified copy of proceedings so as to prepare its appeal,
that the plaintiffs have arguable appeal with good chances of success and that the plaintiffs undertake to give security for costs required to demonstrate their bonafides.
The application is opposed on the ground that what was sought by the applicants was permanent injunction which was refused in the Judgment dated 24th February 2004. A similar application was made before this court which was refused on 16th February 2006.
After the applicants claim was dismissed party and party costs were taxied at Shs.96,240/= and a Certificate of Taxation issued. Judgment was delivered on 24th February 2004 and no appeal has been filed todate.
The applicant had secured a loan from the respondent and offered as security LR NO. NAIROBI/BLOCK 82/767. He defaulted and the respondent issued notice to realize the security. He filed the suit for orders of injunction to restrain the respondent from realizing the security. The application was dismissed. The issue now is the taxed costs.
The intended appeal has no chances of success since the security has already been realized.
The application is dismissed with costs.
Dated and delivered at Nairobi this 10th day of July 2006.
J.L.A. OSIEMO
JUDGE