[2010] KEHC 4024 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would be occasioned if stay was not granted, as the amount involved was not substantial and there was no evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The application was brought without...
Source-derived case information.
- Citation
- [2010] KEHC 4024 (KLR)
- Parties
- Applicant: Zablon Owigo Olang T/A Homeland Services; Respondent: Stephen Nyage Kariri
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Money Decree, Security for Due Performance, Substantial Loss, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zablon Owigo Olang T/A Homeland Services
Applicant
Stephen Nyage Kariri
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 41 rule 4 of the Civil Procedure Rules.
- 2 Whether substantial loss will be occasioned to the applicant if stay is not granted.
- 3 Whether the application for stay was brought without unreasonable delay.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would be occasioned if stay was not granted, as the amount involved was not substantial and there was no evidence that the respondent would be unable to refund the decretal sum if the appeal succeeded. The application was brought without unreasonable delay, and the applicant expressed willingness to provide security, but did not exhibit any security documents. The court emphasized that stay of execution in monetary decrees is not granted as a matter of course unless the applicant shows the amount is substantial and the respondent lacks assets to refund. As these conditions were not met, the application for stay...
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
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Appeal 36 of 2009
ZABLON OWIGO OLANG
T/A HOMELAND SERVICES……………………………….APP/APPLICANT
-VERSUS-
STEPHEN NYAGE KARIRI……………………………RESP/RESPONDENT
RULING
The applicant and another were jointly successfully sued by the respondent in the SRM Court at HomaBay for wrongful attachment and sale of the respondent’s 4 heads of cattle and were ordered to pay Ksh.80,000/= in damages, together with costs and interest. The applicant preferred an appeal which is awaiting hearing and determination. In the meantime, he asks for stay of execution in an application brought underOrder 41 rule 4(1) of the Civil Procedure Rules.The respondent filed Grounds of Opposition and Replying Affidavit in response to the application. The application was argued before me by Mr. Okoth for the applicant and Mr. Mbicha for the respondent.
In appealing, the applicant is exercising his undoubted right and care should be taken that the appeal is not rendered nugatory. The competing issue is that the respondent has a hard-won judgment which he is entitled to execute, and without delay.
The discretion of the court to grant stay of execution is fettered by conditions set out in Order 41 rule 4. The court must be satisfied that substantial loss will be occasioned if stay is not granted; secondly the application has to be brought without unreasonable delay; and, thirdly, the applicant must furnish security for the due performance of the decree as may ultimately be binding upon him. (SeeCarter and Sons Ltd .V. Deposit Protection Fund Board And Others, Civil Appeal No. 291 Of 1997).
The judgment complained about was rendered on 28/1/2009. The appeal was filed on 28/2/2009, and the application on 18/3/2009. There is no complaint that the application was not brought on time.
This is a money decree whose execution is sought to be stayed. The amount is not substantial. It was not deponed in support of the application that the respondent is not a man of sufficient means who would not be able to refund the decretal sum if the appeal ultimately succeeds. I say this because it is not normal for the court to grant stay of execution in monetary decrees unless it can be shown the amount involved is substantial and that the respondent has no known assets within the jurisdiction from which the applicant can recoup in the event that his appeal is successful. (SeeSingh .V. Runda Estates Lt
d [1960] EA 263).
Regarding security, the applicant says he is willing to deposit a log book or title deed into court. None of them was exhibited. In court, the applicant’s advocate indicated they could deposit into court the decretal sum. Whichever may be the security, no substantial loss was demonstrated.
The result is that the application cannot be granted. The same is dismissed with costs.
Dated, signed and delivered at Kisii this 20th day of January 2010.
A.O.MUCHELULE
JUDGE
20/1/2010
Before A.O.Muchelule-J
Court clerk-Bibu
Mrs.Opanga for Appellant/Applicant
Court: Ruling in open Court.
A.O.MUCHELULE
JUDGE
20/1/2010