[2023] KEHC 1561 (KLR)
The court found that since the applicant wishes to exercise its right of appeal and the application was unopposed, there is no discernible injury or prejudice to the respondent if a stay of execution is granted. The court relied on Order 42 Rule 6 of the Civil Procedure Rules, which provides for the grant of stay of...
Source-derived case information.
- Citation
- [2023] KEHC 1561 (KLR)
- Parties
- Applicant: ABSA Bank PLC; Respondent: Samuel Kingori Waithanji
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 104 of 2019
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Appeals Process, Order 42 Rule 6
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
ABSA Bank PLC
Applicant
Samuel Kingori Waithanji
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the respondent will suffer prejudice if stay is granted.
Ratio Decidendi
The court found that since the applicant wishes to exercise its right of appeal and the application was unopposed, there is no discernible injury or prejudice to the respondent if a stay of execution is granted. The court relied on Order 42 Rule 6 of the Civil Procedure Rules, which provides for the grant of stay of execution pending appeal where appropriate. The court therefore allowed the application for stay, pending the hearing and determination of the appeal by the applicant before the Court of Appeal. Costs were reserved to await the outcome of the appeal.
Court Disposition
Application for stay of execution granted.
Orders
- There shall be a stay of execution of the judgment delivered on June 23, 2022 pending the hearing and determination of the appeal before the Court of Appeal.
- Costs shall await the outcome of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
ABSA Bank PLC v Waithanji (Civil Appeal 104 of 2019) [2023] KEHC 1561 (KLR) (9 March 2023) (Ruling)
Neutral citation: [2023] KEHC 1561 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal 104 of 2019
HK Chemitei, J
March 9, 2023
Between
ABSA Bank PLC
Applicant
and
Samuel Kingori Waithanji
Respondent
Ruling
1. In its notice of motion dated 1st August 2022 the applicant prays that there be stay of execution of this court’s judgement delivered on June 23, 2022 pending the intended appeal at the Court of Appeal. The application is supported on the grounds thereof and the sworn affidavit of Michael Massawa sworn on the same date.
2. The application is not opposed despite the presence of the respondent’s counsel in the proceedings.
3. Since the applicant wishes to exercise its right of appeal this court does not see any injury the respondent stands to suffer as provided under order 42 rule 6 of the Civil Procedure Rules.
4. In the premises, let there be stay of this court’s judgement delivered on June 23, 2022 pending the hearing and determination of the appeal by the applicant before the Court of Appeal.
5. Costs shall await the outcome of the appeal.
DATED SIGNED AND DELIVERED AT NAKURU VIDE VIDEO CALL THIS 9TH DAY OF MARCH 2023. H. K. CHEMITEI.JUDGE