[2019] KEELC 2789 (KLR)
The court found that the applicant is entitled to a stay of execution pending appeal, but such stay should be conditional upon the deposit of the entire decretal sum of Kshs.4,000,000 in a joint interest earning account in the names of the advocates for both parties within 30 days. This condition ensures the...
Source-derived case information.
- Citation
- [2019] KEELC 2789 (KLR)
- Parties
- Plaintiff: Christoper Irungu Wambugu; Defendant: Catherine Wairimu Mugo t/a Mugo Wairimu Advocates
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1159 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Legal Topics
- Stay of Execution, Decretal Sum, Appeal Process, Security for Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christoper Irungu Wambugu
Plaintiff
Catherine Wairimu Mugo t/a Mugo Wairimu Advocates
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the stay should be conditional upon deposit of the decretal sum.
Ratio Decidendi
The court found that the applicant is entitled to a stay of execution pending appeal, but such stay should be conditional upon the deposit of the entire decretal sum of Kshs.4,000,000 in a joint interest earning account in the names of the advocates for both parties within 30 days. This condition ensures the interests of both parties are protected: the plaintiff is secured for the judgment sum, and the defendant's right of appeal is preserved. Failure to comply with the condition will result in the automatic lapse of the stay.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Stay of execution of the judgment is granted on condition that the applicant deposits Kshs.4,000,000 in a joint interest earning account in the names of the advocates for both parties in a reputable bank within 30 days from the date of the order.
- If the deposit is not made within 30 days, the stay shall automatically lapse.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC SUIT NO.1159 OF 2016
CHRISTOPER IRUNGU WAMBUGU......................................PLAINTIFF
VERSUS
CATHERINE WAIRIMU MUGO t/a
MUGO WAIRIMU ADVOCATES........................................DEFENDANTS
RULING
1. The Defendant/Applicant filed a Notice of Motion dated 6th June, 2018 in which she sought stay of execution of this Court’s ruling delivered on 28th May, 2018 in which the Applicant’s defence was struck out and judgment entered for the Plaintiff as per the plaint. The Applicant contends that if there is no stay granted, the appeal will be rendered nugatory.
2. The Applicant’s application was opposed by the Plaintiff/Respondent based on a replying affidavit sworn on 24th September, 2018. The Respondent contends that he is ready to concede to the application for stay on condition that the decretal sum is deposited in a joint interest earning account within 30 days from the date the order is made.
3. I have considered the Applicant’s application as well as the proposal made by the Respondent who is ready to concede to the Applicant’s application on condition that the entire decretal amount is deposited in a joint interest earning account. The decretal sum is Kshs.4,000,000/=. As the Applicant pursues her right of appeal, it is necessary that stay be granted. I therefore allow stay of execution on condition that the Applicant deposits Kshs.4,000,000/= in a joint interest earning account in the name of the Advocates for the parties herein in a reputable bank within 30 days from the date of this order failing which the stay shall automatically lapse. Costs in the cause.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 25th day of June, 2019.
E.O.OBAGA
JUDGE
In the absence of parties who had notice of the date and time of delivery of Ruling.
Court Assistant Hilda