[2017] KEHC 4802 (KLR)
The court found that the appellant's property was already under attachment and that the appeal could be rendered nugatory if execution proceeded. However, since the decree was for a sum of money, the respondent could refund the amount if the appeal succeeded. The respondent did not object to a stay provided the...
Source-derived case information.
- Citation
- [2017] KEHC 4802 (KLR)
- Parties
- Appellant: Benson Kamau Mutura; Respondent: James Murimi Kahinga
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 44 of 2015
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Money Decree, Land Sale Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Kamau Mutura
Appellant
James Murimi Kahinga
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal in respect of a money decree.
- 2 Whether the appellant should provide security for the due performance of the decree.
- 3 Whether the offer of land as security, without particulars or documentation, is sufficient.
Ratio Decidendi
The court found that the appellant's property was already under attachment and that the appeal could be rendered nugatory if execution proceeded. However, since the decree was for a sum of money, the respondent could refund the amount if the appeal succeeded. The respondent did not object to a stay provided the decretal sum was deposited in court. The appellant's offer of land as security was insufficient due to lack of particulars or documentation. Therefore, the court granted a conditional stay of execution, requiring the appellant to deposit the decretal sum in court within fourteen days, failing which the stay would lapse.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Stay of execution of the decree granted pending disposal of the appeal, conditional upon the appellant depositing the decretal sum of KShs 258,790.00 in court within fourteen days.
- In default of deposit, the stay of execution shall stand vacated.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL APPEAL NO 44 OF 2015
BENSON KAMAU MUTURA............................APPELLANT
VERSUS
JAMES MURIMI KAHINGA..........................RESPONDENT
R U L I N G
1. This ruling is on the application by notice of motion dated 15/08/2016 by the Appellant for stay of execution of decree pending disposal of the appeal. The Respondent has a money decree (judgment sum was KShs 120,00/00 plus costs and interest). The Respondent had sued for refund of the KShs 120,000/00 which he had paid to the Appellant as purchase price for a plot of land which the Appellant later failed or refused to transfer to him.
2. The grounds of the application appearing on the face thereof include –
(a) That the Appellant’s property is already under attachment in execution of the decree.
(b) That the appeal will be rendered nugatory if the execution proceeds.
3. The Respondent opposed the application by grounds of opposition dated 23/08/2016. One of those grounds is that the decree being a money decree, the Appellant cannot suffer irreparable loss as the Respondent can always refund the decretal sum paid in the event that the Appellant succeeds in his appeal.
4. A the hearing of the application, learned counsel for the Respondent submitted that as the Appellant had stated in his application that he was ready to comply with any order for security that the court may be pleased to make, the Respondent would have no objection to the stay sought if the decretal sum is deposited in court. The Appellant’s response was to state that he had no money and offered alternative security in the form of land. He did not give any particulars of this land or offer any documents thereof for examination by the Respondent’s learned counsel.
5. Upon the submission made by the learned counsel for the Respondent I will allow the Appellant’s application and grant the stay of execution sought pending disposal of the appeal. That stay is conditional upon the Appellant depositing in court as security the decretal sum of KShs 258,790/00 within fourteen (14) days of delivery of this ruling. In default the stay of execution now granted shall stand vacated. It is so ordered.
6. Costs of this application shall be in the appeal.
DATED AND SIGNED AT MURANG’A THIS 22ND DAY OF JUNE 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 23RD DAY OF JUNE 2017