[2008] KEHC 2425 (KLR)
The court held that despite the appellant citing inapplicable provisions, the substance of the application was clear and fell under Order XLI Rule 4(1) & (2) of the Civil Procedure Rules. The appellant had promptly filed the appeal and the application for stay, and had deposited the decretal sum as security. The...
Source-derived case information.
- Citation
- [2008] KEHC 2425 (KLR)
- Parties
- Appellant: Bata Shoe Co. (K) Limited; Respondent: Antonykaka Nandoya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 46 of 2008
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Application for stay of execution pending appeal granted with conditions.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bata Shoe Co. (K) Limited
Appellant
Antonykaka Nandoya
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the appellant has satisfied the conditions for grant of stay under Order XLI Rule 4 of the Civil Procedure Rules.
- 3 Whether the respondent's means are sufficient to secure refund if the appeal succeeds.
Ratio Decidendi
The court held that despite the appellant citing inapplicable provisions, the substance of the application was clear and fell under Order XLI Rule 4(1) & (2) of the Civil Procedure Rules. The appellant had promptly filed the appeal and the application for stay, and had deposited the decretal sum as security. The respondent failed to demonstrate sufficient means to refund the decretal sum if the appeal succeeded. The court found the appellant's fears justified and granted a conditional stay of execution pending appeal, requiring the decretal sum to be placed in an interest-earning joint account and setting timelines for compliance.
Court Disposition
Application for stay of execution pending appeal granted with conditions.
Orders
- The decretal sum deposited in court shall be released to the advocates for the parties to be deposited in an interest earning account in the joint names of the parties’ advocates.
- The money shall be deposited into the interest earning account within 7 days from the date of release from the court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 46 of 2008
BATA SHOE CO. (K) LIMITED……………..…APPELLANT
VERSUS
ANTONYKAKA NANDOYA………...……….RESPONDENT
R U L I N G
By a notice of motion dated 10th March, 2008 Bata Shoe Co. (K) Ltd has moved this court under Order XLI Rule 4(a), Order L Rule 1, Order XXI Rule 22 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, seeking orders for stay of execution of the judgment delivered on 14th January, 2008 in Limuru RMCC. No.145 of 2006 pending the hearing and final determination of the applicant’s appeal.
The appellant’s main concern is that the respondents means and assets are unknown, and there is fear that the respondent may not have the capacity to refund the decretal sum, if the appeal is successful thereby rendering the appeal nugatory.
The respondent objects to the application complaining that it is brought under non-existence or inapplicable rules. It is also contended that the appellant has not fulfilled the conditions of Order XLI RuLe 4 of the Civil Procedure Rules.
It is true that the provisions cited by the appellant are not applicable to the application before the court. Nevertheless, it is clear that the application before court is one for stay of execution pending appeal which falls within the provision of Order XLI Rule 4(1) & (2) of the Civil Procedure Rules.
Under Order L Rule 12 of the Civil Procedure Rules, an application cannot be defeated by the failure to cite the Order, Rule or Statutory provision under which it is brought. Essentially therefore, in the interest of substantial justice, the citing of the wrong provisions notwithstanding, this court will deal with the application as if it were brought under Order XLI Rule 4(1) & (2) of the Civil Procedure Rules. It is evident from the record that the appellant promptly filed the memorandum of appeal on the 4th February, 2008 and filed the current application on the 10th March, 2008. It cannot be said that there has been undue delay in bringing the application. The appellant has already deposited the decretal sum of Kshs.171,500/= into court and the requirement for security has therefore been met.
Although the respondent maintains that he is a person of means, he has not satisfied this court that he is in any gainful employment, business or that he has any assets. The appellant’s fears are therefore not unfounded. Accordingly, I do grant the application and issue an order for stay of execution pending appeal on the following conditions:
1. That the decretal sum which was deposited in court on the 17th March, 2008 shall be released to the advocates for the parties to be deposited in an interest earning account in the joint names of the parties’advocates.
2. The money shall be deposited into the interest earning account within 7 days from the date of release from the court.
3. The appellant shall file and serve a memorandum of appeal within 90 days from the date hereof.
4. The orders for stay of execution shall lapse within 12 months from the date hereof unless otherwise extended by a court.
Those shall be the orders of this court.
Dated and delivered this 13th day of June, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Wambua H/B for Njuguna the appellant
Lokorito H/B for Mwangi the respondent