[2018] KEHC 1934 (KLR)
The court found that the appellant had filed the application for stay of execution timeously and had demonstrated the risk of substantial loss if stay was not granted, particularly as the respondent had not disclosed his financial status or ability to refund the decretal sum should the appeal succeed. The court held...
Source-derived case information.
- Citation
- [2018] KEHC 1934 (KLR)
- Parties
- Appellant: Africa Apparels Limited; Respondent: John Namisi Kiveu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 272 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed, subject to conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Africa Apparels Limited
Appellant
John Namisi Kiveu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the respondent's financial status justifies the requirement for security for due performance.
- 3 Whether the interests of both parties can be balanced by granting stay subject to conditions.
Ratio Decidendi
The court found that the appellant had filed the application for stay of execution timeously and had demonstrated the risk of substantial loss if stay was not granted, particularly as the respondent had not disclosed his financial status or ability to refund the decretal sum should the appeal succeed. The court held that the interests of both parties could be balanced by granting a stay of execution on condition that the entire decretal sum be deposited in an interest earning account in the names of both advocates on record. This would provide sufficient security for the due performance of any decree that may be found against the appellant, thereby protecting the respondent's interests...
Court Disposition
Application for stay of execution pending appeal allowed, subject to conditions.
Orders
- There shall be a stay of execution provided that the decretal sum shall be deposited in an interest earning account in the names of both advocates on record within 30 days from the date of this ruling.
- Costs shall be on appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL 272 OF 2018
AFRICA APPARELS LIMITED...................................APPELLANT
VERSUS
JOHN NAMISI KIVEU...............................................RESPONDENT
(Being an appeal from the judgment of Hon. D.O. Mbeja at Chief Magistrate’s Court
in Nairobi on 30th May, 2018 in CMCC 8637 OF 2016)
RULING
There is a judgment of the lower court which was delivered on 30th May, 2018 in favour of the respondent against the appellant. On 20th June, 2018 the appellant filed a Memorandum of Appeal to contest that judgment. This was followed by an application dated 28th and filed on 29th June, 2018 by way of Notice of Motion under Order 42 Rule 6, Order 22 Rule 22 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a stay of execution pending the determination of the appeal.
The application is supported by an affidavit sworn by the legal officer of APA Insurance Company Limited which had insured the appellant, alongside grounds set out on the face of the application. The application is opposed and there is a replying affidavit sworn by the respondent herein.
The appellant is supposed to satisfy the conditions set out under Order 42 Rule aforesaid. Having considered the material before me, the application was filed timeously. As to whether there is substantial loss, it has been contended that the appellant’s goods are likely to be attached if stay is not granted and further that, if the decretal sum is paid to the respondent, he is unlikely to refund the same if the appeal is successful.
The respondent has not disclosed his financial status which he was duty bound to do, after the appellant raised doubts about his inability to repay the decretal sum if the appeal succeeds.
In applications of this nature, the court has to balance the interests of both parties. Whereas the appellant has a right of appeal, the respondent has a judgment in his favour which he desires to execute. The appellant has offered to deposit the entire decretal sum in an interest earning account in the names of both advocates on record. This appears in the submissions filed herein. I believe that is sufficient security for due performance of any decree that may be found against the appellant.
This application therefore succeeds, and there shall be a stay of execution provided that the decretal sum herein shall be deposited in an interest earning account in the names of both advocates on record for the parties. This shall be done within 30 days from the date of this ruling.
The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 28th day of November, 2018.
A. MBOGHOLI MSAGHA
JUDGE