[2004] KEHC 506 (KLR)
The court found that while the applicant claimed potential substantial loss if the stay was not granted, there was no evidence that the respondent would be unable to repay or return the property if the appeal succeeded. Nevertheless, to balance the interests of both parties, the court granted a conditional stay of...
Source-derived case information.
- Citation
- [2004] KEHC 506 (KLR)
- Parties
- Applicant: Bernard Mwangi Waweru; Respondent: Naftal Maina Gathiari; Respondent: Ernest Ngongo Mwati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1564 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- PJ Ransley
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Mwangi Waweru
Applicant
Naftal Maina Gathiari
Respondent
Ernest Ngongo Mwati
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if the stay is not granted.
- 3 Whether security should be provided for the due performance of the decree.
Ratio Decidendi
The court found that while the applicant claimed potential substantial loss if the stay was not granted, there was no evidence that the respondent would be unable to repay or return the property if the appeal succeeded. Nevertheless, to balance the interests of both parties, the court granted a conditional stay of execution, requiring the applicants to deposit Kshs 700,000 in an interest-bearing account in the joint names of the advocates within 14 days, pending the determination of the appeal.
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Stay of execution granted on condition that the applicants jointly and severally pay Kshs 700,000 into an interest bearing account in the joint names of the advocates within 14 days pending determination of the appeal.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Appeal 1564 of 1998BERNARD MWANGI WAWERU……………………………………….PLAINTIFF VERSUS NAFTAL MAINA GATHIARI……………………….……………1ST DEFENDANT ERNEST NGONGO MWATI……………………………………..2ND DEFENDANTRULING
The applicant applies to stay execution of an order whereby the Applicant’s objection to the attachment of their motor vehicles was dismissed. The Applicants in their affidavits claim that they will suffer substantial loss as in the event that the appeal succeeds they will not be able to recover the motor vehicles from the Respondents which are the means of livelihood.
There is no evidence that the respondent is a man of straw. In the circumstances l will grant a stay on condition that the Applicants jointly and severally pay into an interest bearing account a sum of Kshs 700,000 to be held in the joint names of the advocates pending the determination of the appeal. The payment to be made within 14 days.
DATED AND DELIVERED THIS 4TH DAY OF NOVEMBER 2004
PHILLIP J RANSLEYJUDGE