[2021] KEHC 5234 (KLR)
The court found that the appellant had satisfied all the conditions for grant of stay of execution pending appeal as set out in Order 42 Rule 6 of the Civil Procedure Rules. The appellant demonstrated a likelihood of suffering substantial loss if the stay was not granted, particularly because the respondent may not...
Source-derived case information.
- Citation
- [2021] KEHC 5234 (KLR)
- Parties
- Appellant: Damaris Omwoyo; Respondent: Nancy Kemunto
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E040 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed with conditions.
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Conditions, Order 42 Rule 6, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Omwoyo
Appellant
Nancy Kemunto
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the appellant is likely to suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the appellant had satisfied all the conditions for grant of stay of execution pending appeal as set out in Order 42 Rule 6 of the Civil Procedure Rules. The appellant demonstrated a likelihood of suffering substantial loss if the stay was not granted, particularly because the respondent may not be able to refund the decretal sum should the appeal succeed. The application was made within a reasonable time, and the appellant expressed willingness to deposit security. Consequently, the court allowed the application for stay of execution on condition that the entire decretal sum be deposited in court or in an interest earning account in the joint names of the advocates...
Court Disposition
Application for stay of execution pending appeal allowed with conditions.
Orders
- The appellant/applicant shall within twenty-one (21) days deposit the entire decretal sum either in court or in an interest earning account in the joint names of the advocates for the parties.
- The advocate for the appellant shall within the same period file and serve the record of appeal.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
CIVIL APPEAL NO. E040 OF 2021
DAMARIS OMWOYO.................................................APPELLANT/APPLICANT
VERSUS
NANCY KEMUNTO........................................................................RESPONDENT
{Being an Appeal against the Judgement of Hon. W. C. Waswa (Mr.) – RM Nyamira dated and delivered on the 10th day of May 2021 in the original Nyamira Chief Magistrate’s Court Civil Case No. 8 of 2020}
RULING
The appellant/applicant has by the Notice of Motion dated 7th June 2021 filed herein on 9th June 2021 sought a stay of execution of the decree in Nyamira CMCC No. 8 of 2020 pending hearing and determination of this appeal. Whereas the application is vehemently opposed I have considered the grounds thereof, the supporting and replying affidavits, the rival submissions of Counsel for the parties and the law and I am inclined to allow it. It is my finding that the appellant/applicant has met all the conditions for grant of a stay set out in Order 42 Rule 6 of the Civil Procedure Rules. The appellant/applicant has demonstrated that she is likely to suffer substantial loss should this application be refused and the appeal succeeds. She has demonstrated that the respondent may not be in a position to refund the decretal sum in the event the appeal succeeds. Secondly, the application has been made timeously as I do not consider a delay of one month inordinate in the circumstances of the case. Further, the applicant has expressed willingness to deposit security. In the premises the application is granted but on condition that the appellant/applicant shall within twenty-one (21) days of this order deposit the entire decretal sum (not the insurer’s bank guarantee) either in court or in an interest earning account in the joint names of the advocates for the parties. Secondly, the advocate for the appellant shall within the same period file and serve the record of appeal. It is so ordered.
Ruling signed, dated and delivered electronically in Nyamira on this 8th day of July 2021.
E. N. MAINA
JUDGE