[2004] KEHC 2284 (KLR)
The court found that the appellant would suffer substantial loss if required to pay the entire decretal amount on a judgment entered ex parte for nonappearance. The application for stay was made promptly, and the offer to deposit the log book of the appellant's motor vehicle as security was deemed fair and...
Source-derived case information.
- Citation
- [2004] KEHC 2284 (KLR)
- Parties
- Appellant: Dr. Brigid Boyani Monda; Respondent: Antony Steven Monda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 181 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition.
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Security for Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Brigid Boyani Monda
Appellant
Antony Steven Monda
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the lower court's judgment pending appeal.
- 2 Whether the terms imposed for setting aside the ex parte judgment were oppressive or excessive.
- 3 What constitutes sufficient security for the grant of stay of execution.
Ratio Decidendi
The court found that the appellant would suffer substantial loss if required to pay the entire decretal amount on a judgment entered ex parte for nonappearance. The application for stay was made promptly, and the offer to deposit the log book of the appellant's motor vehicle as security was deemed fair and sufficient. Therefore, the court granted a stay of execution on condition that the appellant deposits the log book with the court within fourteen days.
Court Disposition
Stay of execution granted on condition.
Orders
- Stay of execution granted provided the appellant deposits the log book to motor vehicle registration no. KAG 001 J, Toyota Corona, with the court within fourteen days.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL APPEAL NO 181 OF 2004DR. BRIGID BOYANI MONDA ………….…...…………. APPELLANT
VERSUS
ANTONY STEVEN MONDA ………………...………… RESPONDENT RULING
An ex-parte Judgment was entered against the Appellant in the lower court in Milimani Commercial CC 5657 of 2000 following the Appellant’s Counsel’s failure to appear at the hearing. He subsequently applied for the Judgment to be set aside. In setting aside the Judgment, the Hon. Magistrate (Mrs. G. L. Nzioka) required that the Appellant pay the Respondent’s thrown away costs of Kshs.5,000/= and deposit the entire decretal sum in Court. Aggrieved by that decision, he has appealed to this Court. For now, he wants the execution of that Judgment stayed. He has submitted that those terms of setting aside are oppressive because the Appellant has not been heard on merit, and should not have had to deposit the entire decretal sum in Court. He has offered to deposit his motor vehicle log book in Court as security.
The Respondent’s argument is based mainly on the Appellant Counsel’s conduct that led to the entry of exparte Judgment. That has nothing to do with the application for stay before this Court.
The Court, in granting stay, is guided by Order 41 Rule 4. The applicant must demonstrate that substantial loss will ensue if the order is not granted; that he has filed this application without delay; and that he is willing to provide security.
Clearly, the Applicant will suffer substantial loss if he has to part with the entire decretal amount on a Judgment that was entered ex parte for nonappearance; his application is timely; and the offer of his log book as security is fair.
Accordingly, I grant stay of execution as prayed provided the Applicant deposits with this Court the log book to his motor vehicle registration no. KAG 001 J, Toyota Corona, within the next fourteen (14) days.
Those shall be the orders of this Court.
Dated and delivered at Nairobi this 22nd day of April, 2004. ALNASHIR VISRAM JUDGE