[2019] KEHC 9477 (KLR)
The court found that the applicant had filed an appeal and demonstrated apprehension regarding recovery of the decretal sum if the appeal succeeds. The respondent did not strictly oppose the stay but insisted on security. The court held that, in the unique circumstances of the case, a conditional stay was...
Source-derived case information.
- Citation
- [2019] KEHC 9477 (KLR)
- Parties
- Appellant: David Rankai; Respondent: South Nyanza Sugar Company Limited
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 105 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted conditionally.
- Judges
- AC Mrima
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Rankai
Appellant
South Nyanza Sugar Company Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether security for the due performance of the decree should be ordered and in what form.
Ratio Decidendi
The court found that the applicant had filed an appeal and demonstrated apprehension regarding recovery of the decretal sum if the appeal succeeds. The respondent did not strictly oppose the stay but insisted on security. The court held that, in the unique circumstances of the case, a conditional stay was appropriate. The stay of execution was granted on the condition that the decretal sum be deposited in a joint interest-earning account in the names of the parties' advocates within 45 days, failing which execution would proceed. This approach balanced the interests of both parties and complied with the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 regarding...
Court Disposition
Stay of execution granted conditionally.
Orders
- A stay of execution of the court's decree is granted on condition that the decretal sums are deposited in a joint interest earning account in the names of the parties' advocates within 45 days.
- In default of deposit, execution to issue.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CIVIL APPEAL NO. 105 OF 2017
DAVID RANKAI............................................................APPELLANT/RESPONDENT
-VERSUS-
SOUTH NYANZA SUGAR COMPANY LIMITED....RESPONDENT/APPLICANT
RULING
1. The Applicant herein, South Nyanza Sugar Company Limited,moved this Court by a Notice of Motion dated 27/08/2018 seeking orders of stay of execution of this Court’s decree pending the hearing and determination of an intended appeal to the Court of Appeal.
2. The intended appeal arose from the judgment and decree of this Court rendered on 08/08/2018 where this Court allowed an appeal against the dismissal of the Respondent’s suit before the lower court and awarded damages to the tune of Kshs. 365,300/= with costs and interest.
3. Being aggrieved by the said decision the Applicant filed a Notice of Appeal on 15/08/2018 and the instant application around two weeks later. The application is mainly premised on the grounds that the Applicant is apprehensive that chances of recovery of the decretal money are minimal, if at all any, in the event it succeeds in the appeal as the Respondent’s means and material possessions are unknown to the Respondent except for the decretal sum in this case, that the Applicant shall suffer irreparable loss and is ready to provide security and abide by any order precedent thereto.
4. The application is opposed. The Respondent contended that the Applicant’s apprehension has not been sufficiently demonstrated, that an order of stay of execution cannot be made without the Applicant granting any security and that this is a suitable case for ordering deposit of the decretal sums within defined timelines.
5. I have carefully considered this matter in light of the background of the suit. An appeal has already been preferred and only awaits the other processes towards determination. The overall position of the Respondent is that although he is not strictly opposing the application he decries security by depositing the sums. I tend to agree with the Respondent in the unique circumstances in this matter which call for grant of the stay order albeit conditionally and in line with Order 42 Rule 6(2)of theCivil Procedure Rules 2010.
6. Consequently, a stay of execution of this Court’s decree hereby issues on condition that the decretal sums shall be deposited in a joint interest earning account in the names of the parties’ Advocates within 45 days and in default execution to issue. Costs of the application shall be in the appeal.
7. Orders accordingly.
DELIVERED, DATEDandSIGNED at MIGORI this 12th day of March 2019.
A. C. MRIMA
JUDGE
Judgment delivered in open court and in the presence of: -
Mr. Kerario Marwainstructed by the firm of Kerario Marwa & Co. Advocates for the Appellant/Respondent.
Mr. Marvin Oderoinstructed by the firm of Okong’o Wandago & Company Advocates for the Respondent/Applicant.
Evelyne Nyauke –Court Assistant