[2005] KEHC 125 (KLR)

[2005] KEHC 125 (KLR)

The court found that the appeal was competent as no leave was required under the Civil Procedure Rules for appeals arising from Orders VI and VIA. The applicant demonstrated that there was an arguable appeal and that there was a risk of substantial loss if the status quo was not maintained, particularly due to allegations of collusion to frustrate the applicant's legal rights. The motion for stay was filed without undue delay. Although the applicant did not show substantial financial loss, the court accepted that loss of legal rights and the risk of collusion constituted substantial loss. The court exercised its discretion to order security for due performance, directing the applicant to...

Citation
[2005] KEHC 125 (KLR)
Parties
Appellant: AET Minerals Ltd; Appellant: Station Jambo Safaris; Appellant: Domnic Otieno alias Kabila; Respondent: Kennedy Lumbuku T/A; Respondent: Wambuka Freighters
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Judgment Date
18 February 2005
Case Number
Civil Appeal 61 of 2004
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Outcome
stay of execution granted on condition
Judges
JK Sergon
Legal Topics
Stay of Execution, Leave to Appeal, Security for Due Performance
Source Language
English
Civil Procedure Stay of Execution Leave to Appeal Security for Due Performance

Case Brief

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Parties

AET Minerals Ltd

Appellant

Station Jambo Safaris

Appellant

Domnic Otieno alias Kabila

Appellant

Kennedy Lumbuku T/A

Respondent

Wambuka Freighters

Respondent

Procedural Posture

Civil Appeal / Ruling on Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the appeal is competent without leave of court under the Civil Procedure Rules.
  2. 2 Whether the applicant has demonstrated grounds for stay of execution pending appeal under Order XLI rule 4.
  3. 3 Whether security for due performance should be ordered and in what amount.

Ratio Decidendi

The court found that the appeal was competent as no leave was required under the Civil Procedure Rules for appeals arising from Orders VI and VIA. The applicant demonstrated that there was an arguable appeal and that there was a risk of substantial loss if the status quo was not maintained, particularly due to allegations of collusion to frustrate the applicant's legal rights. The motion for stay was filed without undue delay. Although the applicant did not show substantial financial loss, the court accepted that loss of legal rights and the risk of collusion constituted substantial loss. The court exercised its discretion to order security for due performance, directing the applicant to...

Court Disposition

stay of execution granted on condition

Orders

  • An order of stay of execution is granted on condition that the applicant deposits Ksh.50,000 in court within 30 days from the date of the order.
  • In default of deposit, the stay order shall automatically stand discharged and the motion treated as dismissed.