1. I have considered the Motion dated 26 11. 24 together with the affidavit sworn in support of even date, the reply sworn in opposition to the same dated 6th February 2025, the submissions of the parties, and the applicable law.
2. Order 42 rule 6 of the civil procedure rules require security as a condition for the grant of stay pending appeal. No such security has been offered by the Applicant.
3. Moreover, the Applicant has not attached the ruling and orders to its supporting affidavit to which it seeks a stay of execution. The oversight is unhelpful because the court was unable to, in advance, identify the specific orders and reasons upon which the ruling was made. Nonetheless, this court was able to, during the course of the hearing, access the record of appeal and have sight of the documents.
4. Counsel for the Respondent pointed out that the Applicant’s affidavit has been sworn by the Advocate, personally, and that he depones to matters that go beyond his personal knowledge. Accordingly, the affidavit is defective. Counsel for the Applicant was of the view that because there are no contentious matters before the Court he was at liberty to swear the deposition. I do not however agree that no contested factual matters are before the Court. One contested matter is whether or not the Applicant’s debenture crystallized. This is evident from a reading of the submissions of the parties. I think it would therefore have been more appropriate for the Applicant to swear the affidavit through an officer of the company. However, my ruling will not turn on this factor alone.
5. It would also appear to me that the orders sought are negative in nature. The Applicant had filed a notice of objection and motion in the nature of the objector proceedings seeking to set aside a proclamation and or attachment of property in the lower court. The basis of its objection was that it held a debenture over the said property which was the subject of execution proceedings. That application was dismissed at the tribunal level/ lower court. The Applicant now seeks a stay of execution of that decision dismissing its application. In my view this is a negative order. There is nothing capable of being stayed.
6. Counsel for the Applicant sought to draw a distinction between a stay of execution of the orders of the lower court and a stay of the decree giving rise to the objector proceedings. He did however admit that this issue was also before the lower court, and the court dismissed that prayer as well. Further, on that point, it would also appear that the Applicant is seeking the final orders prayed for in the substantive Appeal at an interlocutory stage because that very same prayer was dismissed in the lower court by way of the present application.
7. I do not think it is appropriate for the court to grant the final orders sought on Appeal at the present stage. Further based on the circumstances and reasons set out above I find that the Application is without merit.
8. The Application is dismissed with costs.
2. Order 42 rule 6 of the civil procedure rules require security as a condition for the grant of stay pending appeal. No such security has been offered by the Applicant.
3. Moreover, the Applicant has not attached the ruling and orders to its supporting affidavit to which it seeks a stay of execution. The oversight is unhelpful because the court was unable to, in advance, identify the specific orders and reasons upon which the ruling was made. Nonetheless, this court was able to, during the course of the hearing, access the record of appeal and have sight of the documents.
4. Counsel for the Respondent pointed out that the Applicant’s affidavit has been sworn by the Advocate, personally, and that he depones to matters that go beyond his personal knowledge. Accordingly, the affidavit is defective. Counsel for the Applicant was of the view that because there are no contentious matters before the Court he was at liberty to swear the deposition. I do not however agree that no contested factual matters are before the Court. One contested matter is whether or not the Applicant’s debenture crystallized. This is evident from a reading of the submissions of the parties. I think it would therefore have been more appropriate for the Applicant to swear the affidavit through an officer of the company. However, my ruling will not turn on this factor alone.
5. It would also appear to me that the orders sought are negative in nature. The Applicant had filed a notice of objection and motion in the nature of the objector proceedings seeking to set aside a proclamation and or attachment of property in the lower court. The basis of its objection was that it held a debenture over the said property which was the subject of execution proceedings. That application was dismissed at the tribunal level/ lower court. The Applicant now seeks a stay of execution of that decision dismissing its application. In my view this is a negative order. There is nothing capable of being stayed.
6. Counsel for the Applicant sought to draw a distinction between a stay of execution of the orders of the lower court and a stay of the decree giving rise to the objector proceedings. He did however admit that this issue was also before the lower court, and the court dismissed that prayer as well. Further, on that point, it would also appear that the Applicant is seeking the final orders prayed for in the substantive Appeal at an interlocutory stage because that very same prayer was dismissed in the lower court by way of the present application.
7. I do not think it is appropriate for the court to grant the final orders sought on Appeal at the present stage. Further based on the circumstances and reasons set out above I find that the Application is without merit.
8. The Application is dismissed with costs.