[2004] KEHC 691 (KLR)
The court found that to avoid rendering the intended appeal nugatory, it was fair and just to grant a stay of execution of the judgment. The applicant had already commenced the appeal process by seeking enlargement of time. The court exercised its discretion to grant the stay, conditional upon the applicant...
Source-derived case information.
- Citation
- [2004] KEHC 691 (KLR)
- Parties
- Applicant: Brooke Bond (K) Ltd; Respondent: James Nyabisi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 91 of 2004
- Procedural Posture
- Miscellaneous Application / Application for Stay of Execution Pending Appeal
- Outcome
- application allowed in part
- Legal Topics
- Stay of Execution, Appeal Process, Enlargement of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brooke Bond (K) Ltd
Applicant
James Nyabisi
Respondent
Procedural Posture
Miscellaneous Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 2 Whether the absence of counsel at judgment delivery and lack of notice justify the stay.
- 3 Whether the order for re-attachment of the applicant's motor vehicle should be vacated.
Ratio Decidendi
The court found that to avoid rendering the intended appeal nugatory, it was fair and just to grant a stay of execution of the judgment. The applicant had already commenced the appeal process by seeking enlargement of time. The court exercised its discretion to grant the stay, conditional upon the applicant depositing the entire decretal sum in an interest-bearing joint account within 15 days. The court also held that, since a stay of execution was granted, the re-attachment of the applicant's motor vehicle should not proceed. Any increased auctioneer's costs arising from the process would be borne by the applicant. Costs of the application were reserved for the intended appeal.
Court Disposition
application allowed in part
Orders
- Stay of execution of judgment and decree in Kisii CM CC.NO.251/98 granted pending hearing and determination of the intended appeal.
- Applicant to deposit the whole decretal sum in an interest accruing account in joint names of both parties within 15 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII MISC. CIVIL APPL. NO.91 OF 2004
BROOKE BOND (K) LTD …………………………………………… PLAINTIFF VERSUS JAMES NYABISI ………………………………………………… DEFENDANT.
RULING
The applicant’s application is for a stay of execution of judgment and decree in Kisii CM CC.NO. NO.251/98 and vacation of order to re-attach his motor vehicle KAK 812S pending the hearing and determination of the intended appeal. It was submitted that judgment was delivered in absence of counsel for the applicant and without Notice.
The application was opposed by Mrs. Obaga for the Respondent.
I have carefully considered the applicant’s submissions and affidavits. The applicant has already started process of appeal by applying for enlargement of time to file appeal.
The respondent was a casual worker. I am satisfied that in order not to render the intended appeal nugatory it is fair and just to order stay of execution of the judgment. I will therefore allow the appeal and hereby issue an order of stay of execution until the intended appeal is heard and determined.The applicant to deposit the whole of decretal sum in an interest accruing account in joint names of both parties within 15 days.
As the issue of attachment though counsel for application submitted that it was irregularly done there was no prayer like that in the application. The only prayer is to vacate order for re-attachment of applicant’s M/V KAK 812S. Having ordered stay of execution it follows that no re-attachment should proceed.
However if there are any auctioneer’s costs increased they should be borne by the applicant. Costs of the application in the intended appeal.
It is so ordered.
Dated 9th November 2004
KABURU BAUNI
JUDGE
9/11/04
Ms. Obaga for Respondent.