[2008] KEHC 1309 (KLR)
The court found that there was no serious opposition to the application for stay of execution. Given the substantial amount involved and the respondent's own proposal, the court held that the appropriate order was to grant a stay of execution on condition that the entire decretal sum be deposited in an interest...
Source-derived case information.
- Citation
- [2008] KEHC 1309 (KLR)
- Parties
- Appellant: Binsand Autoparts & Hauliers; Appellant: David Mutua Ndisii; Respondent: Makau Kaithu Musomba; Respondent: Zipporah Koki Muiva (Suing as Next of kin and on behalf of the Estate of Joseph Gaithu Makau (Deceased))
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 222 of 2007
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Stay of execution granted on condition; costs to abide the appeal.
- 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
Binsand Autoparts & Hauliers
Appellant
David Mutua Ndisii
Appellant
Makau Kaithu Musomba
Respondent
Zipporah Koki Muiva (Suing as Next of kin and on behalf of the Estate of Joseph Gaithu Makau (Deceased))
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution pending appeal should be granted.
- 2 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that there was no serious opposition to the application for stay of execution. Given the substantial amount involved and the respondent's own proposal, the court held that the appropriate order was to grant a stay of execution on condition that the entire decretal sum be deposited in an interest earning account in the names of the advocates for both parties within 45 days. Failure to comply would entitle the respondent to proceed with execution. This approach balanced the interests of both parties and ensured that the subject matter of the appeal would be preserved pending its determination.
Court Disposition
Stay of execution granted on condition; costs to abide the appeal.
Orders
- Stay of execution granted pending appeal on condition that the entire decretal sum be deposited in an interest earning account in the names of the advocates for the parties within 45 days.
- Failure to deposit the decretal sum within 45 days will result in execution issuing.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Appeal 222 of 2007
BINSAND AUTOPARTS & HAULIERS …….........……………………..… 1ST APPELLANT
DAVID MUTUA NDISII …..….…………........…………..………………….. 2ND APPELLANT
VERSUS
MAKAU KAITHU MUSOMBA …….....……....……………..……………1ST RESPONDENT
ZIPPORAH KOKI MUIVA (Suing as Next of kin and on
Behalf of the Estate of JOSEPH GAITHU MAKAU (DECEASED)… 2ND RESPONDENT
RULING
1. The Notice of Motion dated 14/12/2007 seeks orders that stay of execution be granted pending the hearing and determination of the Appeal herein. It is premised on Order XLI rule 4 (1) and (2).
2. Although grounds of opposition were filed on 17/12/2007, when the Application came for hearing on 10/7/2008, Mr L.M Wambua for the Respondent stated as follows:-
“Since the sum is substantial the whole sum should be placed in an interest earning account.”
3. In effect, I see no serious opposition to the Application and without belabouring the issue, I agree that the proper order to make is as follows:-
4. Let stay of execution be granted pending appeal on the condition that the entire decretal sum be deposited in an interest earning account in the names of the advocates for the parties within the next 45 days. Failure to do so, execution to issue.
5. Costs shall abide the Appeal.
6. Orders accordingly.
Dated and delivered at Machakos this 29thday of October2008.
ISAAC LENAOLA
JUDGE
In presence of: Mr Wambua for Respondent
N/A for Applicant
ISAAC LENAOLA
JUDGE