[2009] KEHC 3729 (KLR)
The court found that the appellant had demonstrated genuine inability to provide a bank guarantee for Kshs.1 million due to poverty and unemployment. Evidence was provided that the Coffee Research Foundation was holding the appellant's terminal dues, which could serve as security for the decree. The court held that...
Source-derived case information.
- Citation
- [2009] KEHC 3729 (KLR)
- Parties
- Appellant: Edward Mwangi Gakuru; Respondent: Inspector General (Corporation)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 859 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Stay Conditions
- Outcome
- application for review allowed; previous security order varied
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Review of Court Orders, Security for Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Mwangi Gakuru
Appellant
Inspector General (Corporation)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Stay Conditions
Legal Issues
- 1 Whether the order requiring a bank guarantee of Kshs.1 million as security for stay of execution should be reviewed due to the appellant's inability to comply.
- 2 Whether the sum held by the Coffee Research Foundation can be accepted as security in lieu of a bank guarantee.
- 3 Whether further security should be required from the appellant.
Ratio Decidendi
The court found that the appellant had demonstrated genuine inability to provide a bank guarantee for Kshs.1 million due to poverty and unemployment. Evidence was provided that the Coffee Research Foundation was holding the appellant's terminal dues, which could serve as security for the decree. The court held that it would be fair and just to review the previous order and accept the sum held by the Coffee Research Foundation as security, with an additional requirement for the appellant to deposit or guarantee a further Kshs.200,000. The court exercised its discretion to ensure that the interests of justice were served, balancing the need for security with the appellant's financial position.
Court Disposition
application for review allowed; previous security order varied
Orders
- The order for deposit of a bank guarantee of Kshs.1 million is set aside.
- The sum of Kshs.839,519.50 held by the Coffee Research Foundation shall remain with the Foundation until the appeal is heard and determined.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL APPEAL 859 OF 2007
EDWARD MWANGI GAKURU…………...…...APPELLANT
VERSUS
INSPECTOR GENERAL (CORPORATION)………...RESPONDENT
R U L I N G
1. By a notice of motion dated 16th February, 2009, Edward Mwangi Gakuru, the appellant herein seeks to have the order made on 9th February, 2009 reviewed. The orders sought to be reviewed granted the appellant a stay of execution of the judgment of the lower court pending the hearing and determination of his appeal in this court, on condition that he provides an appropriate bank guarantee for satisfaction of the decree for the sum of Kshs.1 million.
2. The appellant now pleads that due to poverty and unemployment he is unable to furnish the required bank guarantee. The appellant further contends that his former employer, Coffee Research foundation, is holding his terminal dues amounting to Kshs.839,519. 50. He prays that the order made on 9th February, 2009, be reviewed to the extent of applying the sum of Kshs.839,519. 50 being held by the Coffee Research foundation as security instead of the required 1 million.
3. The application is opposed through a replying affidavit sworn by Peter D. Ondiek the Inspector General of State Corporation. He depones that the application has been brought in bad faith simply to delay the legal process. It is contended that the Coffee Research Foundation is not a party to this proceeding. It is maintained that the appellant having failed to comply with the conditions imposed by the court, the order for stay of execution should be discharged.
4. I have carefully considered this application and the submissions made by the counsel. The appellant has availed evidence showing that the Coffee Research Foundation is holding certain monies arising out of the surcharge imposed by the Inspector of State Corporations. In the circumstances, I think it is fair and just that the court do review the order for security which was imposed on 9th February, 2009.
5. Accordingly, I grant the application and review the order as follows:
(i) I set aside the order for deposit of the bank guarantee of Kshs.1 million.
(ii) That the sum of Kshs.839,519. 50 being held by the Coffee Research Foundation shall remain with the Coffee Research foundation until this appeal is heard and determined.
(iii) That the appellant shall either deposit a sum of Kshs.200,000/= into this court as further security or avail a bank guarantee for Kshs.200,000/= within 21 days from the date hereof.
(iv) The appellant shall serve a copy of this order on the Coffee Research Foundation.
Those shall be the orders of this court.
Dated and delivered this 12th day of May, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Muli H/B for Muthama for the appellant
Advocate for the respondent absent
Erick – Court clerk