[2008] KEHC 772 (KLR)
The court found that it was expedient to grant a stay of execution pending appeal to enable the appellant to pursue the appeal, provided that the appellant deposits the full decretal sum in court as previously ordered and complies with timelines for filing and serving the record of appeal. The court exercised its...
Source-derived case information.
- Citation
- [2008] KEHC 772 (KLR)
- Parties
- Appellant: Amarnath ENT Limited; Respondent: Francis Kaigua T/A Franca Scrap Metal Dealers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 427 of 2008
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Stay of execution granted on conditions.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amarnath ENT Limited
Appellant
Francis Kaigua T/A Franca Scrap Metal Dealers
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the appellant is entitled to an order of stay of execution pending appeal.
- 2 Whether the appellant has satisfied the conditions for grant of stay of execution under Order XLI Rule 4 of the Civil Procedure Rules.
- 3 Whether the appellant has deposited adequate security as required by the court.
Ratio Decidendi
The court found that it was expedient to grant a stay of execution pending appeal to enable the appellant to pursue the appeal, provided that the appellant deposits the full decretal sum in court as previously ordered and complies with timelines for filing and serving the record of appeal. The court exercised its discretion to balance the interests of both parties by imposing conditions to ensure security for the respondent and the expeditious disposal of the appeal. The partial deposit already made by the appellant was acknowledged, but the court required the balance to be deposited within seven days. Costs of the application were ordered to be in the appeal.
Court Disposition
Stay of execution granted on conditions.
Orders
- The appellant shall deposit the balance of Kshs.29,609/= into court within 7 days from the date hereof.
- The appellant shall file and serve a record of appeal within 90 days from the date hereof and take all necessary action to facilitate the speedy disposal of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 427 of 2008
AMARNATH ENT LIMITED……………................................……...APPELLANT
VERSUS
FRANCIS KAIGUAT/A SCRAP METAL DEALERS…………RESPONDENT
R U L I N G
Amarnath ENT Ltd who is the appellant in this appeal has moved this court under Section 3A of the Civil Procedure Act and Order XLI Rule 4 of the Civil Procedure Rules seeking inter alia, an order of stay of execution of the judgment entered against him in CMCC No.13392 of 2006 on the 7th August, 2008 pending the hearing and disposal of the appeal. It is the appellant’s contention that its appeal has high chances of success and that unless the order for stay of execution is granted, the appellant will suffer substantial loss as his appeal will be rendered nugatory. The appellant has deposited a sum of Kshs.285. 000/= as security. In support of the application, the appellant’s advocate has relied on the case of Savings and Loan Kenya Ltd vs Odongo (1987) KLR 294 and the case of Mukuma vs Abuodha (1988) KLR 645.
The application is opposed by the respondent Francis Kaigua T/A Franca Scrap Metal Dealers. It was submitted for the respondent that the appellant has been guilty of inordinate delay in bringing the application. Secondly it is maintained that contrary to the court orders made on 18th August 2008, the appellant has not deposited the full decretal sum in court and that even what was deposited was done outside the period given by the court. The court was therefore urged to dismiss the application.
I have carefully considered the application, the affidavit in support and in reply and the submissions made by both parties. I find it expedient that an order for stay of execution pending appeal should issue to enable the appellant pursue his appeal. However, so as to balance the interest of both parties, I will impose the following conditions: -
(i) That the appellant shall deposit the full decretal sum into court as ordered on 18th August, 2008, and therefore the balance of Kshs.29,609/= shall be deposited within 7 days from the date hereof.
(ii) That the appellant shall file and serve a record of appeal within 90 days from the date hereof and take all necessary action to facilitate the speedy disposal of the appeal.
(iii) That the cost of this application shall be in the appeal.
Orders accordingly
Dated and delivered this 7th day of November, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Ochoki H/B for Kanyi for the respondent