[2019] KEHC 11984 (KLR)
The court found that the applicants satisfied the requirements for a stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules, 2010. The application was filed without undue delay, and the applicants demonstrated that substantial loss would occur if the 1st appellant was committed to civil jail before...
Source-derived case information.
- Citation
- [2019] KEHC 11984 (KLR)
- Parties
- Appellant: Bernard Mwangala; Appellant: Hon. Attorney General; Respondent: Kipkai Enterprises Limited; Respondent: Jane Nyaboke Njagi t/a Njagi Nyaboke & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 348 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Costs, Civil Jail, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Mwangala
Appellant
Hon. Attorney General
Appellant
Kipkai Enterprises Limited
Respondent
Jane Nyaboke Njagi t/a Njagi Nyaboke & Company Advocates
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the order committing the 1st appellant to civil jail pending appeal.
- 2 Whether the sum deposited as security is sufficient for the purposes of the stay application.
- 3 Whether the application was filed without unreasonable delay.
Ratio Decidendi
The court found that the applicants satisfied the requirements for a stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules, 2010. The application was filed without undue delay, and the applicants demonstrated that substantial loss would occur if the 1st appellant was committed to civil jail before the appeal was heard, as this would render the appeal nugatory. The court also noted that the required security had been deposited. Therefore, the court allowed the application for stay of execution pending the hearing and determination of the appeal, with the deposited cash bail to remain as security.
Court Disposition
application allowed
Orders
- Stay of execution of the order committing the 1st appellant to civil jail granted pending hearing and determination of the appeal.
- The cash bail of Ksh.50,000 deposited in court to remain as security pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 348 OF 2018
BERNARD MWANGALA ......................................1ST APPELLANT/APPLICANT
HON. ATTORNEY GENERAL ..............................2ND APPELLANT/APPLICANT
VERSUS
KIPKAI ENTERPRISES LIMITED............................................1ST RESPONDENT
JANE NYABOKE NJAGI T/A
NJAGI NYABOKE & COMPANY ADVOCATES....................2ND RESPONDENT
RULING
1. The application dated 16th May, 2019 principally seeks orders that there be a stay of execution of the Order issued on 30th July, 2018 in Nairobi CMCC No. 488 of 2011 Kipkai Enterprises Limited & another v Lower Apartments & 2 others committing the First Appellant to Civil Jail pending the hearing and determination of the Appeal herein.
2. Secondly, that the sum of Kshs.50,000/= deposited in court by the first appellant on 30th July, 2018 be treated as security pending hearing and determination of this Application and Appeal.
3. The background facts to the instant application is a lower court order dated 30th July, 2018 wherein the Applicants were committed to civil jail for five days for disobedience of court orders. Earlier on, the lower court had on 9th April, 2011 issued orders restraining the Applicants from disconnecting the Respondents water supply. These were the orders said to have been disobeyed.
4. The Applicants were dissatisfied with the said orders and filed an appeal herein. It is stated in the grounds and the affidavits in support sworn by Bernard Mwangala and Brenda Lucheno that if the orders sought herein are not granted, the Appeal will be rendered nugatory.
5. The application is opposed. It is stated in the replying affidavits filed by Edgar Munene and Jane Nyaboke Njagi that a similar application had earlier on been dismissed by this court and that the current application is full of falsehoods and mis-presentation of facts regarding the dismissal of the earlier application that was before this court. It is further averred that the present application has been filed after undue delay.
6. The application was canvassed by way of written submissions which I have considered.
7. The ruling herein delivered on 16th May, 2019 reflects that the court did not delve into the merits of the earlier application filed on 30th July, 2018 which sought similar orders as the orders sought in the instant application. The application dated 30th July, 2018 was found to be fatally defective. Indeed the court clearly stated that the Applicants were at liberty to file a competent application for consideration by the court. It was therefore quite in order for the Applicants to file the application at hand.
8. Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides as follows:
“No order for stay of execution shall be made under sub-rule (1) unless –
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
9. The application dated 30th July 2018 was determined on 16th May, 2019. The instant application was filed on 20th May, 2019. There was no undue delay.
10. The 1st Applicant, Bernard Mwangala, has contended that if he proceeds to serve the sentence the appeal herein will be rendered nugatory and an academic exercise. Clearly, being committed to civil jail before the appeal herein is heard would be irreversible and the 1st Applicant will suffer substantial loss.
11. On 3rd September, 2019, the court made orders for the deposit of security of Ksh.50,000/= cash bail or in the alternative the Applicant to execute a bond of Ksh.100,000/= with one surety of a like sum. The record reflects that the cash bail of Ksh.50,000/= was deposited in court on 3rd September, 2019.
11. With the foregoing, this court is satisfied that the Applicants have met the conditions for the grant of the orders sought. Consequently, the application is allowed with costs in cause. The cash bail deposited in court on 3rd September, 2019 to remain as security herein pending the hearing and determination of the Appeal.
Dated, signed and delivered in Nairobi this 2nd day of Oct., 2019
B. THURANIRA JADEN
JUDGE