[2018] KEHC 9419 (KLR)
The court found that the application for stay of execution was filed without unreasonable delay, as the judgment was delivered on 21st March 2018 and the application was filed on 26th April 2018. However, the applicants did not allege that the respondents would be unable to refund the decretal sum nor did they offer...
Source-derived case information.
- Citation
- [2018] KEHC 9419 (KLR)
- Parties
- Applicant: Charles Omollo; Applicant: Universal Freight & Logistic (K) Ltd; Respondent: Julieta Liluka Khayumbi; Respondent: Zipporah Venesa Kweti (Suing as legal representative of the Estate of Reuh Damson Khayumbi, Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 186 of 2018
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Omollo
Applicant
Universal Freight & Logistic (K) Ltd
Applicant
Julieta Liluka Khayumbi
Respondent
Zipporah Venesa Kweti (Suing as legal representative of the Estate of Reuh Damson Khayumbi, Deceased)
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010.
- 2 Whether the application was made without unreasonable delay.
- 3 Whether the applicants have demonstrated that they will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution was filed without unreasonable delay, as the judgment was delivered on 21st March 2018 and the application was filed on 26th April 2018. However, the applicants did not allege that the respondents would be unable to refund the decretal sum nor did they offer any security for the due performance of the decree. To balance the interests of both parties and preserve the applicants' right of appeal, the court granted a conditional stay of execution, requiring the decretal sum to be deposited in an interest earning account held jointly by the parties' advocates or in court within 30 days.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- The decretal sum to be deposited in an interest earning bank account of the counsels for the respective parties or in court within 30 days from the date hereof.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 186 OF 2018
CHARLES OMOLLO.........................................................1ST APPLICANT
UNIVERSAL FREIGHT & LOGISTIC (K) LTD...........2ND APPLICANT
VERSUS
JULIETA LILUKA KHAYUMBI
ZIPPORAH VENESA KWETI( Suing as legalRepresentative of the Estate
of Reuh DamsonKhayumbi (Deceased)..................................RESPONDENT
RULING
1. The application dated 26th April, 2018 seeks orders that there be a stay of execution and/or further execution of the decree in Nairobi Chief Magistrate Court (Milimani commercial Court) No. 577 of 2014 pending the hearing and final determination of this appeal.
2. It is stated in the grounds and the two affidavits in support that judgment was entered in the Lower Court against the Applicant for the sum of Ksh.1,584,624/= . The Applicant is aggrieved by the said judgment and filed the appeal herein. That the Applicant is threatened with execution and is apprehensive that the appeal which has high chances of success will be rendered nugatory and will thereby suffer substantial loss.
3. The application is opposed. It is stated in the replying affidavit that the appeal herein is an afterthought calculated to cause delay and frustrate the suit. That the application has been filed after unreasonable delay and after the Respondent has incurred expenses having the Decree and Certificate of costs extracted. That further expenses have also been incurred in giving instructions to auctioneers. It is contended that the Applicants have not furnished any security for the due performance of the decree.
4. The Respondent urged for the dismissal of the application. In the alternative, that the Applicant be compelled to deposit the decretal sum together with the auctioneers charges in a joint interest earning account of the advocates on record.
5. I have considered the application, the reply to the same and the submissions made by the counsels.
6. Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides as follows:
“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 order as may ultimately be binding on him has been given by the applicant.”
7. The judgment of the Lower Court was delivered on 21st March, 2018. The application at hand was filed on 26th April, 2018. There was no unreasonable delay.
8. Although the Applicant has stated that he will suffer substantial loss, there are no allegations that the Respondent is not capable of refunding the decretal sum. There is no security offered for the due performance of the decree.
9. To balance the competing interest of the parties and to give the Applicant a chance in exercise his undoubted right of appeal, I allow the application on condition that the decretal sum be deposited in an interest earning bank account of the counsels for the respective parties or in court within 30 days from the date hereof.
Date, signed and delivered at Nairobi this 31st day of July, 2018
B. THURANIRA JADEN
JUDGE