REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 38 OF 2004
MILTON K. NJUKI…………………………APPELLANT
VERSUS
EDWARD IRERI MUGO …………………. RESPONDENT
RULING
1. The Appellant seeks a stay of execution pending hearing and determination of his Appeal. The Application brought under Order XLI Rule 4 (5) and 6 of the Civil Procedure Rules is crafted as if is one under Rule 5 (2) of the Court of Appeal Rules. The grounds are that the Appeal is arguable and unless stay of execution is granted, the appeal would be rendered nugatory! 2. In submissions Counsel for the Applicant argues that since there was no jurisdiction, the Appeal will succeed and there is risk of the Appellant being evicted from the disputed land even with such a good appeal.
3. The Respondent who argued the reply in person attempted to recite the whole dispute but on being guided by court merely stated that the Tribunal had jurisdiction and the Application should be dismissed.
4. Such are the times that a court is confronted with a difficult situation. The
Application as framed and argued is totally inept. The reply is worse probably because of a bad Application. To dismiss it would cause injustice to the litigant who clearly has otherwise a deserving case for a stay of execution.
5. I must repeat that a party seeking a stay of execution pending appeal under Order XLI Rule 4of the Civil Procedure Rules must show that;
i) he made the Application without delay, and
ii) he will suffer substantial loss if the stay of execution is not granted, and
iii) he is willing and able to supply some security for the due performance of the decree.
(See generally Carter and Sons Ltd vs Deposit Protection Fund Board and Another C.A 291/1997 – Unreported)
6. Without going to the unhelpful Application and Submissions thereon, the Applicant came to court timeously and obviously if he is evicted from the suit land which is a consequence of the decree, he will suffer substantial loss.
7. I shall therefore grant the orders for stay of execution. To secure the Respondent who has a lawful judgment this Appeal should be heard in priority to all other matters in this court in the month of December 2004.
8. I shall make no order as to costs in this matter for reasons I have stated above. Orders accordingly.
Dated and delivered in open court on this 22nd day of November 2004.
I.LENAOLA
AG. JUDGE
Mr. Utuku for Applicant
Respondent – Present
I.LENAOLA
AG. JUDGE