[2012] KEHC 4590 (KLR)
The court found that the application for stay of execution was made without inordinate delay and that the decretal sum had already been deposited in a joint account as security. However, the court determined that there was no sufficient cause to continue holding the security in court, as the respondent had...
Source-derived case information.
- Citation
- [2012] KEHC 4590 (KLR)
- Parties
- Appellant: Charles Mbagaya Amira; Respondent: Permod Malhorta
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 274 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal to the Court of Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeals Process, Summary Judgment, Sale of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mbagaya Amira
Appellant
Permod Malhorta
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal to the Court of Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal to the Court of Appeal.
- 2 Whether the security deposited in a joint account should continue to be held as security during the pendency of the appeal.
- 3 Whether the applicant will suffer substantial loss if the decretal sum is released.
Ratio Decidendi
The court found that the application for stay of execution was made without inordinate delay and that the decretal sum had already been deposited in a joint account as security. However, the court determined that there was no sufficient cause to continue holding the security in court, as the respondent had demonstrated the ability to refund the decretal sum if required. The court concluded that the applicant had not established that he would suffer substantial loss if the funds were released, and therefore declined to grant the stay of execution. The application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution pending appeal is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 274 OF 2009
CHARLES MBAGAYA AMIRA …………………….… APPELLANT/ORIGINAL DEFENDANT
VERSUS
PERMOD MALHORTA …………….……………… RESPONDENT/ORIGINAL PLAINTIFFS
(Being an appeal from the judgment of Hon. W. Mokaya Senior Principal Magistrate in Civil Case No. 12746 of 2006 dated 26th day of January 2009 atMilimani Commercial courts, Nairobi)
R U L I N G
Application for Stay of Execution
Pending appeal to the Court of Appeal
Notice of Motion 22nd December 2011
I.INTRODUCTION
1. On the 14th November 2011, this High Court gave judgment in favour of the respondent against the appellant. The parties began their case in the subordinate court. The subject involved the sale of land whereby the issue as to whether the “rates” had been paid or not. The trial magistrate held in favour of the respondent, that there was no triable issues and entered summary judgment against the appellants/original defendants.
2. Upon appeal to this High Court, the decision of the trial magistrate was upheld. The appeal was accordingly dismissed.
3. Being dissatisfied with this High Court’s decision, the respondent filed an appeal to the Court of Appeal by way of notice. By an application dated 22nd December 2011, he asked there be a stay of execution pending that appeal.
IIAPPLICATION DATED 22ND DECEMBER 2011
4. The respondent/applicant stated that his appeal has high chance of success in the Court of Appeal. If the decretal sum now deposited in a joint account of the advocates is released to the appellant/respondent in this application, then the appeal will be rendered nugatory.
5. The applicant had taken a loan and used his savings to finance the security deposited to court. He would lose all and suffer “substantial damage.”
6. In reply, the appellant/respondent in this application stated the key to the application is found in para 14. That states:
“In the event of my succeeding in the Court of Appeal, I would not be able to get the moneys from the respondent as he has no known assets and the appeal shall be rendered nugatory.”
7. The appellant/respondent states that he is able to make good and refund the decretal sum if called upon. That he is a man of means.
IIIFINDINGS
8. The application herein for stay of execution was brought without inordinate delay. The decretal sum had been deposited in a joint account and had all along acted as security which appears that the applicant wishes that this continue to so act and be used as security.
9. Form the background of this case and reasoning contained in this court’s judgment, I hereby find that there is no cause to permit the security to continue to be held in court. I would decline to grant the application for stay of execution. The appeal to the Court of Appeal is one of pure point of law.
10. The application is dismissed with costs to the appellant/respondent in this application.
DATED THIS 14TH DAY OF MARCH 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) P. Simani instructed by M/s Simani & Co Advocates for appellant/
original defendant
ii) V. Goswami instructed by Sobhag H Shah & Co Advocates for respondent/ original plaintiff