[2004] KEHC 1647 (KLR)
The court found that an appeal had already been filed, thus the application for stay was not defective. The applicant demonstrated that substantial loss would occur if the stay was not granted, as the respondent failed to provide clear evidence of regular income. The applicant offered sufficient security by...
Source-derived case information.
- Citation
- [2004] KEHC 1647 (KLR)
- Parties
- Applicant: Charles Nyawour; Respondent: Edi Kurman; Respondent: Said Abeid; Respondent: Severin Sea Lodge
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 719 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay Pending Appeal
- Outcome
- stay granted pending appeal, conditional on deposit of security
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nyawour
Applicant
Edi Kurman
Respondent
Said Abeid
Respondent
Severin Sea Lodge
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the court has jurisdiction to hear the application for stay pending appeal.
- 2 Whether the applicant has satisfied the requirements for grant of stay under Order 41(2).
- 3 Whether sufficient security has been offered by the applicant.
Ratio Decidendi
The court found that an appeal had already been filed, thus the application for stay was not defective. The applicant demonstrated that substantial loss would occur if the stay was not granted, as the respondent failed to provide clear evidence of regular income. The applicant offered sufficient security by proposing to deposit the decretal sum in a joint interest-earning account. The court was satisfied that the requirements under Order 41(2) were met and granted a stay pending appeal, conditional upon the deposit of the decretal sum within 14 days.
Court Disposition
stay granted pending appeal, conditional on deposit of security
Orders
- Applicant to deposit Kshs.470,000/- in a reputable bank in the joint names of both parties’ Advocates within 14 days, failing which the stay shall lapse.
- Costs of this application to the Respondent/Defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA MISCELLANEOUS APPLICATION NO. 719 OF 2003
CHARLES NYAWOUR…………………………....……………PLAINTIFF
V E R S U S
1. EDI KURMAN
2. SAID ABEID
3. SEVERIN SEA LODGE………………………..........……DEFENDANTS
R U L I N G
The Applicant in this Miscellaneous Application says that he had filed an appeal on 1/12/03 but on 10/12/2003 this Miscellaneous Application was filed on the strength that there was an appeal to be filed.
It is correct to submit that Order 41(4) presupposes that an appeal has already been filed. In the present case it is true that there is an Appeal No.206 of 2003. I would not say this application is defective for that reason.
There will be only the issue of costs which has been incurred in this application which will be closed after these orders. These costs should have been in the appeal. I do not find that the court has no jurisdiction to hear this application.
On the issue of requirements under Order 41(2) this court is satisfied that substantial loss would be occasioned if the order was not granted. The Respondent/Defendant has failed to give clear evidence of the source of his income. It is said he is a money-lender but this is not sufficient to prove that he has regular income.
I am also satisfied that the Applicant has offered sufficient security in the matter by offering to deposit the decretal sum in an interest earning account to be held jointly by both Advocates. The decretal amount is now said to be Kshs.450,620/-.
In the circumstances, I grant stay pending determination of the appeal.
I order the Applicant to deposit with a reputable bank in the joint names of both parties’ Advocates the sum of Kshs.470,000/- within the next 14 days failing which the stay granted shall lapse.
Costs of this application to the Respondent/Defendant.
Dated at Mombasa this 12th day of February, 2004.
JOYCE KHAMINWA
J U D G E