[2005] KEHC 2464 (KLR)
The court held that Order 44 rule 4(1) of the Civil Procedure Rules allows a party to seek a stay of execution in the appellate court even if a similar application was made in the lower court, regardless of whether it was granted or not. The applicant provided a plausible and unchallenged explanation for failing to...
Source-derived case information.
- Citation
- [2005] KEHC 2464 (KLR)
- Parties
- Appellant: Capital Fish (K) Ltd; Respondent: William Mose Gechiko
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 218 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Legal Topics
- Stay of Execution, Appeals Process, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Capital Fish (K) Ltd
Appellant
William Mose Gechiko
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 failure to comply with the lower court's conditional stay order bars the applicant from seeking a stay in the appellate court.
- 3 Whether the appeal is arguable and if the respondent's ability to refund the decretal sum is relevant.
Ratio Decidendi
The court held that Order 44 rule 4(1) of the Civil Procedure Rules allows a party to seek a stay of execution in the appellate court even if a similar application was made in the lower court, regardless of whether it was granted or not. The applicant provided a plausible and unchallenged explanation for failing to comply with the lower court's conditional stay order, namely the insurer's delay in releasing the cheque and the respondent's advocate rejecting it. The application for stay was made promptly thereafter. The court found the appeal to be arguable, particularly regarding the applicability of S.25(1) of Cap 236, and noted the substantial amount involved and doubts about the...
Court Disposition
application for stay of execution allowed with conditions
Orders
- Stay of execution of Kisii CM CC No.26 of 2003 granted until the appeal is heard and determined, on condition that the applicant deposits the decretal amount and assessed costs into an interest earning account in the joint names of both counsels within 15 days.
- Applicant to pay costs of this application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Civil Appeal 218 of 2004
CAPITAL FISH (K) LTD …………………………………….. APPELLANT
VERSUS
WILLIAM MOSE GECHIKO …………...……………….. RESPONDENT
RULING
The applicant was the defendant in Kisii CM CC.NO.26 OF 2003 seeks court to issue a stay of execution of that court decree until the hearing and determination of this appeal.
Court was told that after judgment was entered by the lower court applicant applied for stay in that court. The lower court granted the stay on 29/9/04 on condition that the decretal amount be deposited in an interest earning account in the joint names of Advocates of both parties. Applicant stated that he was not able to deposit the money within the 21 days given because his insurer released the Cheque late and the Respondents advocate rejected the cheque when sent to him. He said this application was brought without undue delay and that the applicant has an arguable appeal. It was also deponed and submitted that the respondent is a man of straw and if paid and appeal succeeds he cannot refund the money.
Application was opposed by Mr. Ochillo who submitted that the applicant should have gone to the lower court and ask it to extend time within which he could comply with the order. He did not do so and as such he ignored a lawful court order.
Mr. Ochillo also took issue with the affidavit sworn by counsel saying that he should not have sworn on facts. The applicant should have sworn the affidavit. Lastly it was submitted that the appeal has no chances of success as the decree was based on Cap 236 L. O. K. He referred the court to S.25(1) of that Act.
I have carefully considered the application and the submissions.
Order 44 rule 4(1) CPR clearly provides that a party can make an application for stay in an appellate court even if he had made another in the court which made the decree appealed against and not withstanding if his application in that lower court was allowed or rejected. The applicant therefore had a right to make this application even if he had been granted an order of stay in the lower court which he did not comply with. He explained why he did not comply with the lower court’s order. He told court that his insurer was late in releasing the cheque. This is a plausible reason which was not challenged. This application was made soon after that.
As for the issue of whether the appeal is arguable. I am satisfied this was so. The applicant disputes the award given and if S.25 (1) of Cap 236 is applicable is an issue to be canvassed during the appeal.
Award was for shs.93,000/=. This is not very little money in the light that the Respondent even in his evidence in the lower court did not say what he do. It is doubtful if he can be able to refund the amount if it is paid to him and the appeal succeeds.
In the circumstances I find application is reasonable. I allow the same and order that the stay of execution of Kisii CM CC No.26 of 2003 until the appeal is heard and determined on condition that the applicant do deposit the decretal amount and costs, if already assessed, into an interest earning account into the joint names of both counsels within 15 days.
The applicant will also pay costs of this application.
Dated 13th day of April 2005
KABURU BAUNI
JUDGE
cc. Mobisa
Mr. Soire H/B for Mr. Nyakundi for Applicant.
N/A for Respondent.