Automated Summary
Key Facts
Benson Njagi applied for a stay of execution of a livestock sale warrant issued on March 24, 2023, pending his appeal against costs assessed at Kshs 152,933. The court dismissed the application, citing inordinate delay in seeking interim relief and failure to demonstrate substantial loss or offer security for costs. The appeal was argued on March 13, 2023, with a pending judgment on June 9, 2023, and the original judgment was delivered on December 15, 2021.
Issues
- The court determined it was functus officio regarding the pending Court of Appeal judgment, meaning it could not further intervene in the execution process once the appeal was argued and a judgment awaited.
- The court required the applicant to offer security for the costs (Kshs 152,000) if the appeal failed, but the applicant provided no such offer, which was a critical factor in dismissing the application.
- The court noted the applicant's inordinate delay in seeking a stay, as he knew of the impending execution but did not act at the appellate stage. This delay was not explained and affected the court's decision.
- The applicant claimed substantial loss if the livestock was sold, but the court referenced precedents stating that mere execution or large costs don't constitute substantial loss without other vitiating factors. The applicant failed to provide such evidence.
- The court evaluated whether to stay the execution of a warrant of arrest and sale of livestock pending the hearing of an appeal. The applicant argued the execution would cause substantial loss, but the court found the delay in seeking the stay inordinate and no security offered. The court also held it was functus officio regarding the pending Court of Appeal judgment.
Holdings
The court dismissed the applicant's application to stay the execution of a warrant of arrest and sale of livestock, finding that the delay in seeking interim relief was inordinate, no security for costs was offered, and the court was functus officio. The applicant's appeal was pending judgment at the Court of Appeal, but the court emphasized that the execution of costs is a lawful exercise unless other vitiating factors are demonstrated. The application was dismissed with costs, and the court noted that the respondent may not refund the costs if the appeal is meritorious.
Remedies
The court dismissed the application for a stay of execution, determining that the applicant failed to demonstrate substantial loss and did not offer security for costs. The application is dismissed with costs.
Monetary Damages
152933.00
Legal Principles
- Under Order 42 of the Civil Procedure Rules, a party seeking to stay execution of a decree must demonstrate substantial loss, offer security for the costs if the appeal fails, and show it is in the interest of justice. The applicant in this case failed to establish substantial loss or provide security for the taxed costs of Kshs 152,000, leading to the dismissal of the application.
- The court held that it was functus officio (no longer competent to act) in light of the pending appeal at the Court of Appeal, as no interim orders were sought during the appellate process despite awareness of the impending execution.
Precedent Name
- Butt v Rent Restrict Tribunal
- Kenya Shell v Kibiru & another
- James Wangalwa & another v Agnes Naliaka Cheseto
Judge Name
CK NZILI
Passage Text
- I find that the court is functus officio in view of the pending judgment of the Court of Appeal.
- the court in Butt v Rent Restrict Tribunal (1979) eKLR said that a party must offer security for the due satisfaction of the decree should the appeal fail. In this application no attempt to demonstrate substantial loss has been made and no security for costs of Kshs 152,000 has been offered.
- While aware of all these developments, the applicant did not move the court at the appellate stage for any interim orders yet he knew of the impending execution. Therefore, I find that the delay to move the court is inordinate and not explained at all.