Faith Wanjiru Wilson v Charity Muthoni Wanjohi [2016] KEELC 128 (KLR)
The bottom line
#The High Court dismissed a stay of execution application because the applicant showed no substantial loss and waited a year too long.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as a condition for stay of execution pending appeal
The applicant failed to demonstrate any substantial loss she would suffer; her affidavit referred only to the appeal being arguable, which is not a condition under Order 42 Rule 6.
The court perused the eleven paragraphs of the applicant's supporting affidavit and the grounds of the application and found no reference to substantial loss. The applicant instead argued that her appeal was arguable and that stay was in the interest of justice. Arguability of an appeal is not among the conditions prescribed by Order 42 Rule 6, so without evidence of substantial loss the applicant could not succeed.
Unreasonable delay in making the stay application
The application filed on 7th April 2016, roughly one to two years after the ruling of 21st April 2015, was made with undue delay.
The applicant sought to justify the delay by stating she had requested certified copies of proceedings and judgment on 22nd May 2015. The court held that proceedings are not a prerequisite for filing a stay application, so the one-year delay was unexplained. The delay also breached the overriding objective of the timely disposal of proceedings under Sections 1A, 1B and 3A of the Civil Procedure Act.
Absence of an appeal against the judgment the subject of the intended stay
The appeal on file is against the ruling dismissing the application to set aside judgment, not against the judgment itself, so the stay application serves no useful purpose.
The court perused the appeal and found it was directed at the ruling of Hon. Mr. Andayi W. Francis, Chief Magistrate, delivered on 21st April 2015, which dismissed the applicant's application to set aside the judgment delivered on 20th November 2014. Since no appeal existed against the judgment of 20th November 2014, an order staying execution of that decree's judgment would serve no purpose.
Legal principles established
#- The cornerstone of an application for stay of execution pending appeal is substantial loss, which the applicant must demonstrate; whether the appeal is arguable is not a condition for stay.
- An application for stay of execution must be made without unreasonable delay; a party does not require certified proceedings to file such an application.
- A party in breach of the Court's rules cannot invoke the overriding objective provisions to obtain the Court's discretion in their favour.
Court orders
#- 1.The applicant's Notice of Motion dated 7th April 2016 is dismissed with costs
- On appeal from
- Chief Magistrate's Court
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faith Wanjiru Wilson v Charity Muthoni Wanjohi [2016] KEELC 128 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/128/eng@2016-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.