[2018] KEHC 4397 (KLR)
The court found that the application was urgent due to the threat of execution for recovery of costs. Without delving into the merits of the substantive application for stay pending appeal, the court exercised its discretion to grant a temporary stay of execution on condition that the applicant deposits the taxed...
Source-derived case information.
- Citation
- [2018] KEHC 4397 (KLR)
- Parties
- Applicant: ERI Limited; Respondent: Equitorial Commercial Bank (formerly Southern Credit Banking Corporation Limited); Respondent: Zainul Galib Velji
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case 83 of 2018
- Procedural Posture
- Stay Application / Ruling on Ex Parte Application for Stay Pending Appeal
- Outcome
- Temporary stay of execution granted on condition of deposit of taxed costs; matter certified urgent; interpartes hearing date set.
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Urgent Applications, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ERI Limited
Applicant
Equitorial Commercial Bank (formerly Southern Credit Banking Corporation Limited)
Respondent
Zainul Galib Velji
Respondent
Procedural Posture
Stay Application / Ruling on Ex Parte Application for Stay Pending Appeal
Legal Issues
- 1 Whether the application should be certified as urgent and heard during the court recess.
- 2 Whether a temporary stay of execution pending interpartes hearing of the application for stay pending appeal should be granted.
Ratio Decidendi
The court found that the application was urgent due to the threat of execution for recovery of costs. Without delving into the merits of the substantive application for stay pending appeal, the court exercised its discretion to grant a temporary stay of execution on condition that the applicant deposits the taxed costs into a joint interest earning account operated by both parties' advocates. This measure was deemed necessary to preserve the subject matter and prevent prejudice to the applicant pending the interpartes hearing of the substantive application for stay.
Court Disposition
Temporary stay of execution granted on condition of deposit of taxed costs; matter certified urgent; interpartes hearing date set.
Orders
- The matter is certified as urgent for consideration during the recess.
- There shall be a temporary stay of execution of recovery of costs on condition that the applicant deposits the taxed costs into a joint interest earning account operated by both advocates for the applicant and the 2nd respondent with a reputable commercial bank within 15 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
KSM HCC. NO. 83 OF 2018
(FORMERLY ELC NO. 269 OF 2017)
(CORAM: R. E. ABURILI - J.)
ERI LIMITED.............................................................PLAINTIFF/APPLICANT
VERSUS
EQUITORIAL COMMERCIAL BANK (FORMERLY SOUTHERN CREDIT
BANKING CORPORATION LIMITED..............................1ST RESPONDENT
ZAINUL GALIB VELJI........................................................2ND RESPONDENT
RULING
The Applicant by its application dated 27/8/2018 seeks for orders among others, that they be heard during the recess; that the application be certified as urgent and that there by stay of execution pending appeal. On the latter prayer, they further seek for temporary stay orders pending interpartes hearing of the application for stay pending appeal.
The application is brought exparte in the first instance.
I have considered the application as supported by the affidavit and annexures. I have given equal consideration to Mr. Achura’s submissions.
I am satisfied that the matter is urgent as there is threat of execution of recovery of costs. I certify the matter as urgent for consideration during the recess.
On whether this court should grant temporary stay of Execution pending interpartes hearing of the application for stay, I shall, without delving into the merits of the application order that there shall be temporary stay of Execution of recovery of cost on condition that the applicant deposits the taxed costs into a joint interest earning account to be operated by both advocates for the applicant and the 2nd Respondent with a reputable commercial bank within the next 15 days of date hereof until further orders of the court.
The applicant to serve the 2nd Respondent for interpartes hearing of the application for stay pending appeal on 11/9/2018 before Hon. Justice Fred Ochieng, Presiding Judge, Kisumu High Court.
Orders accordingly.
Dated, Signed and Delivered at SIAYA this 28th day of August 2018.
R.E. ABURILI
JUDGE