[2015] KEHC 384 (KLR)
The court found that while the decree is a money decree and the respondent bank is capable of repaying the sum should the appeal succeed, there is precedent in Kenya for banks failing. The court exercised its discretion to grant a stay of execution, conditional upon the applicant providing reasonable security. The...
Source-derived case information.
- Citation
- [2015] KEHC 384 (KLR)
- Parties
- Applicant: Bernard Muia and Beatrice Ndume Nthuku T/A as Trinardin Investments; Respondent: African Banking Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 484 of 2015
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- DO Ogembo, CM Kariuki
- Legal Topics
- Stay of Execution, Security for Decree, Money Decree, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Muia and Beatrice Ndume Nthuku T/A as Trinardin Investments
Applicant
African Banking Corporation
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the decree pending appeal.
- 2 Whether the applicant has satisfied the conditions for stay under Order 42 of the Civil Procedure Rules.
- 3 Whether security should be provided as a condition for stay.
Ratio Decidendi
The court found that while the decree is a money decree and the respondent bank is capable of repaying the sum should the appeal succeed, there is precedent in Kenya for banks failing. The court exercised its discretion to grant a stay of execution, conditional upon the applicant providing reasonable security. The applicant was ordered to pay Kshs.500,000 to the respondent within 10 days as part of the security for the decree. The court emphasized the balance between the right of the judgment creditor to enjoy the fruits of judgment and the need to protect the applicant from potential loss, especially given the realities of the banking sector in Kenya.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- A stay of execution of the Chief Magistrate's Court's decree made on 21st August 2015 is issued pending the hearing and determination of the applicant's High Court Appeal No. 448 of 2015.
- The stay shall take effect subject to the applicant paying to the respondent Kshs.500,000 within 10 days from the date hereof.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 484 OF 2015
BERNARD MUIA andBEATRICE NDUME NTHUKU
T/A AS TRINARDIN INVESTMENTS……………APPELLANT/APPLICANT
VERSUS
AFRICAN BANKING CORPORATION…………....………….RESPONDENT
RULING
By a Notice of Motion dated 1st October, 2015 and filed herein on 2nd October, 2015 by the Appellant/Applicant, the Applicant seeks an Order of Stay of Execution pending the hearing and determination of the appeal. The application is premised on the grounds set out therein, that the intended appeal is arguable with overwhelming prospects of success, and that if the stay is not granted the Respondent threatens to levy execution against the Applicant.
The Applicant has attached the decree which is sought to be executed. It is for a sum of Kshs.1,329,349. 40/= plus costs and interest amounting to Kshs.142,413. 74/=.
The application is supported by affidavit of BERNARD MUHIA NTHUKU sworn and filed herein on 2nd October, 2015.
The application is opposed through the Replying Affidavit of BRENDA MARANGU sworn and filed herein on 12th October, 2015.
In opposition to the application, the Respondent states that the Applicant ought to have applied for stay in the trial court. That failure notwithstanding, the Respondent states further that the application is filed after inordinate delay. In any event, the Respondent’s case is that the Applicant has not disclosed the prejudice it stands to suffer if the stay is not granted. The Respondent states that the Applicant has not satisfied the conditions under Order 42 upon which a Stay of Execution pending hearing and determination of appeal may be granted. Such conditions included the issuance of security.
Parties made oral submissions in court which I have considered together with this application. The only issue I raise for determination is whether this court can under Order 42 grant stay.
It is trite law that a Judgement Creditor has the right to enjoy the fruits of his or her judgment and should not be unduly fettered in such enjoyment. Where that right is to be interfered with, the Applicant must show that he or she is likely to suffer loss if the application is not granted. Further, the court may issue such an Order and at the same time direct that the Applicant provides such security as may be necessary in the circumstances.
I have considered the decree herein. It is a money decree which the Respondent bank can repay should the intended appeal succeed. So there should be no argument that the Applicant will suffer any loss. However, even banks go under, and in Kenya we have living testimonies of that fact.
At the end, the decision to grant stay of execution and on what terms is at the discretion of the court. I have considered the circumstances of this case. I will allow this application on the condition that security for the decree is provided in an amount which is reasonable. Accordingly, I make the following orders.
A Stay of Execution of the Chief’s Magistrate’s Court’s Decree made on 21st August 2015 is hereby issued pending the hearing and determination of the Applicant’s High Court Appeal No.448 of 2015.
Order (a) above shall take effect subject to the Applicant paying to the Respondent a sum of Kshs.500,000/= being part of the aforesaid decree, within 10 days from the date hereof.
The costs of this application shall be for the Respondent.
Orders accordingly.
SIGNED,
E. K. O. OGOLA
JUDGE
READ, DELIVERED AND DATED AT NAIROBI
THIS 11th DAY OF DECEMBER 2015.
C. KARIUKI
JUDGE
PRESENT:
…………………..for the Plaintiff/Applicant
…………………..for the Defendant/Respondent
Teresia - Court Clerk