[2012] KEHC 2851 (KLR)
The court found that the applicants' applications for stay of execution were meritorious, given the intricate issues involved and the potential for the execution process to be onerous if commenced. The court was satisfied that the applicants had met the threshold for grant of stay, including the risk of the appeal...
Source-derived case information.
- Citation
- [2012] KEHC 2851 (KLR)
- Parties
- Plaintiff: Daniel David Njuguna; Defendant: National Bank of Kenya; Defendant: Legacy Auctioneer Services
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 197 of 1999
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal, with conditions on costs.
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Appeal Process, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel David Njuguna
Plaintiff
National Bank of Kenya
Defendant
Legacy Auctioneer Services
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient grounds for stay of execution pending appeal.
- 2 Whether the appeal would be rendered nugatory if stay is not granted.
- 3 Whether the applicants will suffer loss if stay is not granted.
Ratio Decidendi
The court found that the applicants' applications for stay of execution were meritorious, given the intricate issues involved and the potential for the execution process to be onerous if commenced. The court was satisfied that the applicants had met the threshold for grant of stay, including the risk of the appeal being rendered nugatory and the possibility of suffering loss. Consequently, the court ordered a stay of execution of the judgment delivered on 22-2-2012 pending the hearing and determination of the intended appeal, subject to payment of taxed costs to the respondent.
Court Disposition
Stay of execution granted pending appeal, with conditions on costs.
Orders
- There be stay of the judgment delivered on 22-2-2012 pending the hearing and determination of the intended appeal.
- The applicants/defendants to pay the taxed costs to the respondent within 30 days after issuance of certificate of costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATKISUMU
CIVIL CASE 189 OF 2011
DANIEL DAVID NJUGUNA………….………..…………..PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA…………..………..1ST DEFENDANT
LEGACY AUCTIONEER SERVICES…..….….…..2ND DEFENDANT
R U L I N G
Before me are two similar applications dated 9-5-2012 and 28-5-2012. Both applications essentially seek stay of execution of the judgment herein delivered on 22-2-2012 pending the hearing and determination of the appeal. Both applications filed by the 1st and 2nd defendant/applicant argue that they have a strong and arguable appeal and that should the execution process be undertaken by the plaintiff/respondent they stand to suffer loss and damages and that their appeal shall be rendered nugatory. The supporting affidavits of Ronald Mwangi Kibuchi and Mrs. D.W. Gituga say as much. The respondent through the affidavit of Mr. Onsongo his counsel as well as the grounds of opposition has opposed the two applications. In a nutshell what Mr. Onsongo is saying is that his client should be left to enjoy the fruits of the judgment. The appeal process is a matter of right for any litigant. As clearly observed by the 1st respondent in its submission the three grounds that are legally and generally considered before such application is allowed are:- Whether the application has any good chance of success. Whether the appeal shall be rendered nugatory if stay is not granted. Whether the application shall suffer loss if that stay is not granted. I am satisfied that the applicants’ applications are meritorious. Considering the intricate issues in this matter and the fact that if the execution process is commenced, the same shall be onerous. On the part of the parties herein, I do order that:- There be stay of the judgment to delivered on 22-2-2012 pending the hearing and determination of the intended appeal. The applicants/defendants do pay the taxed costs to the respondent within the next 30 days after issuance of certificate of costs. Costs of this application to the respondent
Dated, signed and delivered at Kisumu this 27th day of July, 2012.
H.K. CHEMITEI JUDGE
In the presence of: …………………………………for the plaintiff ………………………….for the respondents HKC/va