[2019] KEHC 2071 (KLR)
The court found that the appellant had satisfied the conditions for stay of execution pending appeal as set out in Order 42 Rule 6 of the Civil Procedure Rules. The application was filed within reasonable time, and the appellant offered to provide security for the due performance of the decree. Since the appeal was...
Source-derived case information.
- Citation
- [2019] KEHC 2071 (KLR)
- Parties
- Appellant: Butamo Sharon; Respondent: Meshack Ng’ang’a Kanyoni (Suing as the administrator of the estate of the late Samuel Kamunge Ng’ang’a)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 83 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals Process, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Butamo Sharon
Appellant
Meshack Ng’ang’a Kanyoni (Suing as the administrator of the estate of the late Samuel Kamunge Ng’ang’a)
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether substantial loss may result to the appellant if stay is not granted.
- 3 What security should be provided for the due performance of the decree.
Ratio Decidendi
The court found that the appellant had satisfied the conditions for stay of execution pending appeal as set out in Order 42 Rule 6 of the Civil Procedure Rules. The application was filed within reasonable time, and the appellant offered to provide security for the due performance of the decree. Since the appeal was only on quantum of damages, the court allowed the application for stay of execution on condition that the appellant pays the respondent Kshs. 1,500,000 and deposits the balance of the decretal sum in an interest earning account in the names of both advocates for the parties within 30 days. Failure to comply would result in execution proceeding. The court thus balanced the...
Court Disposition
Application for stay of execution allowed on conditions.
Orders
- Appellant to pay respondent Kshs. 1,500,000 within 30 days.
- Appellant to deposit the balance of the decretal sum in an interest earning account in the names of both advocates within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 83 OF 2019
BUTAMO SHARON....................................................................APPELLANT
VERSUS
MESHACK NG’ANG’A KANYONI
(Suing as the administrator of the estate of the late
SAMUEL KAMUNGE NG’ANG’A......................................RESPONDENT
RULING
There is a judgment in favour of the respondent against the appellant following a suit in the lower court. The appellant was aggrieved by the said judgment and lodged an appeal by way of Memorandum of Appeal filed on 18th February, 2019.
This is an application for stay of execution of the lower court judgment which was delivered on 23rd January, 2019. The application which is by way of Notice of Motion under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63 E of the Civil Procedure Act, is supported by an Affidavit sworn by the legal Officer of the insurers of the appellant alongside grounds set out on the face of the application.The application is opposed and there is a replying affidavit sworn by the respondent.
Order 42 Rule 6 of the Civil Procedure Rules is clear on the conditions that apply in such applications. The Memorandum of Appeal was filed timeously. The application was also filed within reasonable time because after the judgment, the respondent was granted 30 days stay of execution which period ended on or about 23rd February, 2019 and this application was filed on 27th March, 2019.
The appellant is supposed to demonstrate that substantial loss may result if stay is not granted. I have considered the attendant circumstances and the authorities cited. The appellant has a right of appeal while at the same time the respondent has a judgment he wishes to execute. I am called upon to balance the interests of both parties.
There was a consent on liability recorded by the parties before the assessment of damages was done by the court. Indeed, the appeal is against quantum of damages assessed by the court.
I have considered the submissions of the parties. The appellant has offered to provide security for any decree that may be issued against him. That should be sufficient guarantee to the respondent in the event the appeal is dismissed. However, having observed that the appeal is on quantum only, I allow the application for stay of execution on condition that the appellant pays respondent a sum of Kshs. 1,500,000/=, and deposit the balance of the decretal sum in an interest earning account in the names of both advocates for the parties. These conditions shall be met within 30 days from the date of this ruling and in default thereof execution shall follow. The costs shall abide by the result of the appeal.
Dated, signed and delivered at Nairobi this 23rd Day of October, 2019.
A. MBOGHOLI MSAGHA
JUDGE