[2018] KEHC 1937 (KLR)
The court found that since the interlocutory judgment had been set aside and the appellant was granted unconditional leave to defend, the substratum of the decree was affected. The appellant had an arguable appeal, and failure to grant a stay could render the appeal nugatory. No prejudice was shown by the respondent...
Source-derived case information.
- Citation
- [2018] KEHC 1937 (KLR)
- Parties
- Appellant: Brinks Security Services Limited; Respondent: Chrisantus Shiwundu Nangira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 211 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Interlocutory Judgment, Leave to Defend, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brinks Security Services Limited
Appellant
Chrisantus Shiwundu Nangira
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the lower court's order requiring deposit of half the decretal sum pending appeal.
- 2 Whether the appeal would be rendered nugatory if stay is not granted.
- 3 Whether the respondent would suffer prejudice if stay is granted.
Ratio Decidendi
The court found that since the interlocutory judgment had been set aside and the appellant was granted unconditional leave to defend, the substratum of the decree was affected. The appellant had an arguable appeal, and failure to grant a stay could render the appeal nugatory. No prejudice was shown by the respondent that would result from granting the stay. The application for stay of execution was therefore allowed as prayed.
Court Disposition
Application for stay of execution allowed.
Orders
- Stay of execution of the lower court's order requiring deposit of half the decretal sum is granted pending hearing and determination of the appeal.
- Costs to be in the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL 211 OF 2018
BRINKS SECURITY SERVICES LIMITED ………….. APPELLANT
VERSUS
CHRISANTUS SHIWUNDU NANGIRA …………… ….RESPODNENT
(Being an appeal against the Ruling of the Hon. D.A. Ocharo SRM, delivered in court on 5th April, 2018 in Nairobi CMCC No. 5350 of 2014)
RULING
The appellant was the defendant in the lower court while the respondent was the plaintiff. Judgment was entered against the appellant prompting an application to set aside the interlocutory judgment upon which, on 5th April, 2018 the lower court directed that the appellant deposits half of the decretal sum in court within 30 days pending the hearing and determination of this appeal.
It is that ruling that aggrieved the appellant leading to the present application. In this application, the appellant seeks an order that execution of the lower court order be stayed, in particular the deposit of half of the decretal sum. In the ruling of the lower court, the interlocutory judgment was set aside and the appellant granted unconditional leave to defend the suit, only that the said deposit should be done.
This application is by way of Notice of Motion under Sections 1A, 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules. From the record, the application was filed timeously because the said ruling was given on 5th April, 2018 while the application was filed on 30th of the same month.
The interlocutory judgment having been set aside and the appellant granted unconditional leave to defend the suit, the sub strum of the decree was also affected. The appellant therefore has an arguable appeal which may be rendered nugatory if stay is not granted. Further, no prejudice has been demonstrated shall befall the respondent if the order sought is not granted.
I have looked at the submissions of both parties and the cited authorities. I am persuaded that the order sought should be granted and therefore I allow the application for stay as prayed. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 27th day of November, 2018.
A. MBOGHOLI MSAGHA
JUDGE