[2012] KEHC 1884 (KLR)
The court found that the applicant had demonstrated an arguable appeal and that denying the stay could render the appeal nugatory. However, to balance the interests of both parties, the court imposed a condition that the applicant must pay Kshs. 1,000,000 to the respondent within 30 days as security. Failure to...
Source-derived case information.
- Citation
- [2012] KEHC 1884 (KLR)
- Parties
- Applicant: Damaris Kavinza Okeyo; Respondent: Equity Bank Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 207 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition.
- Legal Topics
- Stay of Execution, Injunctions, Security for Costs, Appeals, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Kavinza Okeyo
Applicant
Equity Bank Ltd
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant has demonstrated the existence of a strong and arguable appeal.
- 3 Whether conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicant had demonstrated an arguable appeal and that denying the stay could render the appeal nugatory. However, to balance the interests of both parties, the court imposed a condition that the applicant must pay Kshs. 1,000,000 to the respondent within 30 days as security. Failure to comply would entitle the respondent to proceed with realization of the security. The court relied on Order 42 Rule 6(2) of the Civil Procedure Rules and principles of equity to ensure fairness to both sides.
Court Disposition
Application for stay of execution pending appeal allowed on condition.
Orders
- Stay of execution pending appeal is allowed on condition that the applicant pays Kshs. 1,000,000 to the respondent within 30 days.
- In default, the respondent may proceed to realize the security.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
Civil Case 207 of 2009
DAMARIS KAVINZA OKEYO........................................APPLICANT/PLAINTIFF
VERSUS
EQUITY BANK LTD................................................RESPONDENT/DEFENDANT
R U L I N G
By her notice of motion dated 10-9-2012 the applicant seeks stay of execution pending the hearing and determination of the appeal in the court of appeal.
The applicant\'s application for injunction staying the sale of land parcel No. Kisumu/Nyalenda “B”/1947 was dismissed on 23-1-2012.
The application is supported by the annexed affidavit of the applicant sworn on 4-9-2012. The net effect of her affidavit is that she has a strong and an arguable appeal.
Further, that should the security be sold then she and her family stand to suffer loss and damages.
Geofrey Masike Wanyonyithe credit manager of the defendant has sworn a replying affidavit in opposition to the applicant\'s application. He contends that the outstanding balance as at 3-12-2009 was Kshs. 1,346,637. 85/= and the same continuous to attract interest.
According to him the applicant has no credible appeal hence the need to disallow her application. He further averred that the plaintiff/applicant should deposit the sum of Kshs. 1,346,637. 85/= if the application is allowed.
It is a common practice now to allow such application conditionally if the court is satisfied that there is such a credible appeal. This is clearly expressed under order of 42 (2) of the Civil Procedure Rules and the sections thereunder
I am convinced that the defendant /respondent is not an institution of straw and thus capable of refunding the applicant should she succeed in her appeal. However, equity must be seen to be fair on both sides. The bank at least must be compensated while awaiting the appeal. Equally the applicant should be granted a chance or else the appeal may be rendered nugatory.
I shall therefore allow the said application on the following terms:-
(a)Stay pending appeal is hereby allowed on condition that the applicant/plaintiff pays the sum of (Kshs. 1,000,000/=). to the defendant within the next 30 days from the delivery of this ruling.
(b)In default the defendant may proceed to realize the security.
(c)Cost to the respondent.
Dated, signed and delivered at Kisumu this 15th day of October 2012
H.K. CHEMITEI JUDGE
In the presence of:
Otieno for Mwamu for the applicant
Onyango for the respondent
HKC/va