[2023] KEHC 245 (KLR)
The court found that the appellants had satisfied the three conditions under Order 42 Rule 6 for the grant of stay pending appeal: they demonstrated the risk of substantial loss due to the large decretal sum, filed the application without unreasonable delay, and offered security for due performance. However, the...
Source-derived case information.
- Citation
- [2023] KEHC 245 (KLR)
- Parties
- Appellant: Jaspeter Kaur Amrit; Appellant: Travinder Singh; Respondent: Gloria Muthoni Wachira
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E071 of 2022
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- Application for stay pending appeal allowed with conditions.
- Judges
- NW Sifuna
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Order 42 Rule 6, Money Judgment
- 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
Jaspeter Kaur Amrit
Appellant
Travinder Singh
Appellant
Gloria Muthoni Wachira
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the security offered by the appellants is adequate and appropriate for a money judgment.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the appellants had satisfied the three conditions under Order 42 Rule 6 for the grant of stay pending appeal: they demonstrated the risk of substantial loss due to the large decretal sum, filed the application without unreasonable delay, and offered security for due performance. However, the court held that for a money judgment, monetary security is preferable to an insurance bond. Accordingly, the court granted a conditional stay pending appeal, requiring the appellants to pay KES 3 million to the respondent within 45 days, with the balance of KES 9,684,962.44 to abide the outcome of the appeal. Failure to comply would result in the lapse of the stay and the entire...
Court Disposition
Application for stay pending appeal allowed with conditions.
Orders
- Stay of execution pending appeal granted until hearing and final determination of the appeal, conditional upon payment of KES 3 million to the respondent within 45 days.
- The balance of KES 9,684,962.44 to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
Amrit & another v Wachira (Civil Appeal E071 of 2022) [2023] KEHC 245 (KLR) (20 January 2023) (Ruling)
Neutral citation: [2023] KEHC 245 (KLR)
Republic of Kenya
In the High Court at Murang'a
Civil Appeal E071 of 2022
NW Sifuna, J
January 20, 2023
Between
Jaspeter Kaur Amrit
1st Appellant
Travinder Singh
2nd Appellant
and
Gloria Muthoni Wachira
Respondent
Ruling
1. This is an application for stay pending appeal. It has been brought in this Appeal by the Appellant. It is dated November 24, 2022. The same has been opposed by the Respondent vide the Grounds of Objection dated 9/1/2023. The Objection being mainly that the Application falls short of the legal threshold for an application for stay pending appeal. The Application is anchored on order 42 rule 6 of the Civil Procedure Rules 2010, which is a self-contained and self-executing provision of law with its own safety valves to meet the ends of justice, discourage the abuse of the court process, and allow a successful litigant to enjoy the fruits of his or her judgment.
2. In an Application of this nature, the Applicant has to meet the three conditions set by Order 42 Rule 6, namely;a.That substantial loss may result to the Applicant unless the stay is granted;b.Thatthe application has been made without unreasonable delay; andc.Thatthe Applicant has given or offered security for the due performance of that decree.Applying this test to this Application, I find That:a.The Applicants have in their Application and in the Supporting Affidavit of Rachael Njoki Appollo sworn in support thereof, demonstrated that they will suffer substantial loss as the decretal sum being over 12 Million Kenya Shillings is a huge sum.b.The Application as chronologically narrated by the Applicant’s Counsel in her Submissions and even on the face of the Application itself, was filed without any delay.c.The Applicants have in Ground 5 of their Application and even in paragraph 11 of the Supporting Affidavit offered security in the form of an Insurance Bond. However, given that this is a money judgment, this court is more inclined towards a security that is readily available in monetary form. In this case a monetary security is to be preferred as submitted by the Respondent’s Counsel in his submissions on this Application.
3. Having found that the Application meets the legal threshold prescribed by Order 42 Rule 6 on the grant of stay pending appeal, I grant the Applicants a stay pending appeal to last until the hearing and final determination of the appeal herein. The same to be on condition that they shall pay to the respondent the sum of Kshs 3 million part of the judgement sum herein and the balance thereof of Kshs 9,684,962/44 shall abide the outcome of this Appeal.
4. The said payment of Kshs 3 million to be paid within 45 days from the date of this ruling, defaulting which this stay shall automatically lapse and the entire decretal sum shall become payable and for execution.
DATED, SIGNED AND DELIVERED ORALLY IN OPEN COURT THIS 20TH DAY OF JANUARY, 2023. PROF N SIFUNAJUDGEJanuary 20, 2023In the Presence of:Ms Odeo Advocate for the AppellantMr. Mwangi Advocate for the RespondentQuinteen Ndubi & Jackline Njeru – Court AssistantsMrs Odeo: I apply for a typed copy of the Ruling.Court: This Ruling be typed and supplied to the Appellants and the Respondent upon payment of the Court charges.PROF N SIFUNAJUDGEJanuary 20, 2023