[2018] KEHC 2820 (KLR)
The court found that the applicants have a right of appeal and a valid apprehension that recovery of the decretal sum may be difficult if paid out and the appeal succeeds. At the same time, the respondent has a valid judgment and is entitled to its fruits. To balance these interests, the court allowed the...
Source-derived case information.
- Citation
- [2018] KEHC 2820 (KLR)
- Parties
- Plaintiff: Dickson Kituva Maswili; Defendant: Vivek Investments Limited; Defendant: Dennis Segera Onyancha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 108 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on terms.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals Process, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Kituva Maswili
Plaintiff
Vivek Investments Limited
Defendant
Dennis Segera Onyancha
Defendant
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether to grant a stay of execution of the lower court judgment pending appeal.
- 2 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicants have a right of appeal and a valid apprehension that recovery of the decretal sum may be difficult if paid out and the appeal succeeds. At the same time, the respondent has a valid judgment and is entitled to its fruits. To balance these interests, the court allowed the application for stay of execution on condition that the applicants pay Kshs. 400,000 to the respondent and secure the balance by a bank guarantee within 30 days, failing which execution may proceed. This approach ensures the appeal is not rendered nugatory while providing partial satisfaction to the respondent.
Court Disposition
Application for stay of execution allowed on terms.
Orders
- Applicants to pay respondent Kshs. 400,000 within 30 days.
- Applicants to secure the balance of the decretal sum by way of a bank guarantee within 30 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPBULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 108 OF 2018
DICKSON KITUVA MASWILI..............................................................PLAINTIFF
VERSUS
VIVEK INVESTMENTS LIMITED..........................................1ST DEFENDANT
DENNIS SEGERA ONYANCHA...............................................2ND DEFENDANT
RULING
There is a judgment in favour of the respondent herein in the sum of Kshs. 800,000/= delivered by the lower court on 13th February, 2018. The applicants herein were aggrieved by that judgment and have filed a memorandum of appeal. It is dated 23rd and filed on 28th February, 2018.
This was followed by an application for stay of execution of the said judgment pending the hearing and determination of that appeal. That application was dated 9th and filed on 10th April, 2018. It is under Sections 1A, 1B and 3A of the Civil Procedure Act, Orders 51 and 42 rule 6 of the Civil Procedure Rules.
The grounds appear on the face of the application and the supporting affidavit sworn by the 2nd applicant. The application is opposed and there is a replying affidavit sworn the by the respondent.
The applicants have a right of appeal while the respondent has a valid judgment in his favour. The challenge to the lower court judgment is on both liability and quantum. The applicants have a valid apprehension if the decretal sum is paid to the respondent, it may be difficult to recover the same if the appeal succeeds in which case it may be rendered nugatory. The respondent on the other hand depones that he is a sole bread winner of his family who is now unable to work and now depends on handouts from well-wishers to support his family despite having successfully litigated his case.
In balancing the interest of both parties I am inclined to allow the application on the following terms. The applicants shall pay the respondent a sum of Kshs. 400,000/= and cause the balance of the decretal sum to be secured by way of a bank guarantee. The above conditions shall be effected within 30 days from the date of this ruling. In default execution shall issue. Costs shall be on appeal.
Dated, signed and delivered at Nairobi this 31st day of October, 2018.
A. MBOGHOLI MSAGHA
JUDGE