[2008] KEHC 1221 (KLR)
The court found that it was fair and just to grant a conditional stay of execution to balance the interests of both parties. The appellants demonstrated that they risked irreparable loss if the stay was not granted, as their appeal could be rendered nugatory and recovery of the decretal sum might be impossible....
Source-derived case information.
- Citation
- [2008] KEHC 1221 (KLR)
- Parties
- Appellant: Action Aid International Kenya; Appellant: Oxfam GB Kenya; Appellant: William Migwi (Being sued as the Commonwealth Education fund Coordinator); Respondent: Ndunda Musau; Respondent: Peter Lemmy Munuri; Respondent: Mrs. Catherine M. Kola; Respondent: Kenya National Association of Parents (KNAP)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 356 of 2008
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- conditional stay of execution granted
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Costs, Irreparable Loss, Conditional Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Action Aid International Kenya
Appellant
Oxfam GB Kenya
Appellant
William Migwi (Being sued as the Commonwealth Education fund Coordinator)
Appellant
Ndunda Musau
Respondent
Peter Lemmy Munuri
Respondent
Mrs. Catherine M. Kola
Respondent
Kenya National Association of Parents (KNAP)
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution of the lower court's ruling pending appeal.
- 2 Whether the appellants will suffer irreparable loss if the stay is not granted.
- 3 Whether the respondents will suffer prejudice if the stay is granted without security.
Ratio Decidendi
The court found that it was fair and just to grant a conditional stay of execution to balance the interests of both parties. The appellants demonstrated that they risked irreparable loss if the stay was not granted, as their appeal could be rendered nugatory and recovery of the decretal sum might be impossible. However, the respondents had shown that they would suffer prejudice if the appellants were not compelled to provide security. Therefore, the court ordered a stay of execution on the condition that the appellants deposit the decretal sum in court within 21 days, with the sum to remain in court until the appeal is heard and determined. This conditional order ensures that the appeal...
Court Disposition
conditional stay of execution granted
Orders
- A stay of execution of the ruling delivered by Hon. Ireri on 17th June, 2008 in Milimani CMCC No.2391 of 2008 is granted on condition that the sum of Kshs.300,735 is deposited in court within 21 days from the date hereof.
- The deposited sum shall remain in court until the appeal is heard and disposed of.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 356 of 2008
ACTION AID INTERNATIONAL KENYA……..……..1ST APPELLANT
OXFAM GB KENYA…….………………………...……2ND APPELLANT
WILLIAM MIGWI (Being sued as the
Commonwealth Education fund Coordinator..…..3RD APPELLANT
VERSUS
NDUNDA MUSAU……………..……………………1ST RESPONDENT
PETER LEMMY MUNURI………………………….2ND RESPONDENT
MRS. CATHERINE M. KOLA……………………...3RD RESPONDENT
KENYA NATIONAL ASSOCIATION
OF PARENTS (KNAP)……….………….………….4TH RESPONDENT
R U L I N G
By a notice of motion dated 13th July, 2008, the appellant/applicants seek an order for stay of execution of the ruling delivered by the Resident Magistrate Hon. Ireri on 17th June, 2008 in Milimani CMCC No.2391 of 2008, pending the hearing and determination of their appeal. It is the appellants’ contention that unless the order for stay of execution is granted, they will suffer irreparable loss as they will be denied a chance of being heard on their defence, and their appeal will be rendered nugatory. The appellants also maintain that they will not be able to recover the decretal sum from the representatives of the 4th respondent, once the orders are executed and the respondents are paid.
The respondents opposed the application through a replying affidavit sworn by Ndunda Musau, the 1st respondent who is a director of 4th respondent. He deponed that the respondents have already incurred expenses and unless the appellants are compelled to pay the respondents will suffer prejudice. The respondents further contended that the appellants should be ordered to deposit the decretal sum into court.
I have considered the application, the affidavit in support and in reply and the annextures thereto. I am satisfied that it is fair and just to grant a conditional order of stay of execution. Accordingly I hereby order that a stay of execution of the ruling delivered by the Hon. Ireri on 17th June, 2008 in Milimani CMCC No.2391 of 2008 shall issue on condition that the sum of Kshs.300,735/= shall be deposited in court within 21 days from the date hereof. The deposited sum shall remain in court until the appeal is heard and disposed of. Costs of the application shall be in the appeal.
Those shall be the orders of this court.
Dated and delivered this 29th day of October, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Mwela H/B for Njoroge for the appellant
Advocate for the respondent absent