[2012] KEHC 746 (KLR)
The court found that the application for stay of execution was made within a reasonable time, as it was filed 34 days after judgment, which does not amount to undue delay. However, the applicant failed to demonstrate what substantial loss would be suffered if execution proceeded and did not offer any security for...
Source-derived case information.
- Citation
- [2012] KEHC 746 (KLR)
- Parties
- Plaintiff: Charles Kimoso Toton; Defendant: Reuben Cherutich Chebon; Defendant: Job Chebon t/a Wote Executive
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 55 of 2004
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- MJA Emukule
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Kimoso Toton
Plaintiff
Reuben Cherutich Chebon
Defendant
Job Chebon t/a Wote Executive
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution was made without unreasonable delay.
- 2 Whether the applicant demonstrated substantial loss if stay is not granted.
- 3 Whether the applicant offered adequate security for due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was made within a reasonable time, as it was filed 34 days after judgment, which does not amount to undue delay. However, the applicant failed to demonstrate what substantial loss would be suffered if execution proceeded and did not offer any security for the due performance of the decree. Despite these shortcomings, the court exercised its discretion to grant a conditional stay of execution, requiring payment of half the decretal sum to the decree-holder and deposit of the other half in joint names of counsel for both parties, with costs awarded to the decree-holder.
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution granted on condition that half the decretal sum (Kshs 865,670.60) is paid to the decree-holder.
- The other half (Kshs 865,670.60) to be deposited in the joint names of counsel for the decree-holder and the judgment-debtor.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
Civil Suit 55 of 2004 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Liberation Serif","serif"; mso-fareast-"WenQuanYi Micro Hei";} </style> <![endif]
CHARLES KIMOSO TOTON.............................................PLAINTIFF/RESPONDENT
VERSUS
REUBEN CHERUTICH CHEBON.................................1ST DEFENDANT/APPLICANT
JOB CHEBON T/A WOTE EXECUTIVE.....................2ND DEFENDANT/APPLICANT
RULING
In a Notice of Motion dated 2nd August 2012 and filed on 3rd August 2012 the Applicant sought a stay of the orders granted in a Judgment delivered in this court on 29th June 2012.
The conditions for stay of execution of a judgment are set out in Order 42, rule 4(2) of the Civil Procedure Rules -
“(1) …....
(2)No order for stay of execution shall be made under sub- rule 1 unless -
(a)the court is satisfied that substantial loss may result to the Applicant unless the order is made, and that the application has been made without unreasonable delay, and
(b)such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given by the Applicant.”
Judgment herein was given on 29. 06. 2012. A Notice of Appeal was filed on 9th July 2012, that is barely 11 days after the delivery of the Judgment. Filing of the appeal does not constitute a stay of execution. That is what rule 4(1) of Order 42 says.
The Application for a Stay of Execution was filed on 3rd August 2012, that is some 34 days after the judgment was delivered.
In my view an application for stay should be applied for within a reasonable time. A reasonable time is a question of fact. Under rule 5 of Order 42, an application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
The rule therefore is that the application may be made “informally” - i.e. verbally without a written application – immediately (pronto) following the delivery of judgment or ruling. An application for stay of execution made after 30 days following the delivery of the judgment or ruling may in the terms of rule 4(5) of the Order 42 of the Civil Procedure Rules, not be considered immediate, but not to be undue delay in terms of rule 4(2) of the said Order. The Applicant therefore fulfills one of the requirements of 4(2) aforesaid. He has however not demonstrated what damage or loss he would suffer if execution proceeds.He has also not offered any security to ensure performance of the decree should his appeal before the Court of Appeal be unsuccessful.
In the circumstances, I grant a stay of execution on terms following -
(a) Payment to the Decree-holder of half the decretal sum Kshs 865,670. 60 and
(b) the deposit of the other half Kshs 865,670. 60 in the joint names of counsel for the decree-holder and the judgment-debtor
The decree-holder shall have the costs of this application.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 6th day of December, 2012
M.J. ANYARA EMUKULE
JUDGE