[2017] KEHC 7146 (KLR)
The court found that the application for stay of execution was filed timeously and that the 1st defendant's apprehension of substantial loss was well founded, given the plaintiff's lack of a known source of income and the risk that recovery of the decretal sum could be difficult if the appeal succeeded. The 1st...
Source-derived case information.
- Citation
- [2017] KEHC 7146 (KLR)
- Parties
- Plaintiff: Ezekiel Nzuki Mumo; Defendant: John Kinuthia; Defendant: Beatrice W. Ngari
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 378 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Judgment, Appeals Process, Substantial Loss, Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ezekiel Nzuki Mumo
Plaintiff
John Kinuthia
Defendant
Beatrice W. Ngari
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the 1st defendant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the offer of security by the 1st defendant is reasonable and sufficient.
- 3 Whether payment of the decretal sum to the plaintiff would render the appeal nugatory and cause substantial loss.
Ratio Decidendi
The court found that the application for stay of execution was filed timeously and that the 1st defendant's apprehension of substantial loss was well founded, given the plaintiff's lack of a known source of income and the risk that recovery of the decretal sum could be difficult if the appeal succeeded. The 1st defendant's offer of security was deemed reasonable. Accordingly, the court granted a conditional stay of execution: the 1st defendant must pay Kshs. 2,000,000 to the plaintiff and deposit the balance of the decretal sum in an interest-earning joint account in the names of both advocates within 30 days. Costs of the application were ordered to be in the appeal.
Court Disposition
Application for stay of execution allowed on conditions.
Orders
- Stay of execution of the decree granted on condition that the 1st defendant pays Kshs. 2,000,000 to the plaintiff within 30 days.
- The balance of the decretal sum to be deposited in an interest-earning account in the joint names of both advocates within 30 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE 378 OF 2011
EZEKIEL NZUKI MUMO .....................................PLAINTIFF
VERSUS
JOHN KINUTHIA.......................................1ST DEFENDANT
BEATRICE W. NGARI ..............................2ND DEFENDANT
RULING
On 5th July, 2015 the court gave judgment in favour of the plaintiff in the total sum of Kshs. 10,741,000/= general damages and Kshs. 63,976/= special damages. The 1st defendant was aggrieved by the said judgment and have lodged a notice of appeal dated 19th July, 2016.
There is now before me an application by way of Notice of Motion under Sections 1A and 1B of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules for the basic order of stay of execution pending the determination of the appeal. The application is by the 1st defendant who is apprehensive that if the order of stay is not issued the decree will be executed and the appeal rendered nugatory. It is the 1st defendant’s position that the appeal has high chances of success and involves a substantial sum of money. There is a supporting affidavit sworn by Lucy Muriithi who in addition to other reasons depones that the 1st defendant is willing and able to abide by any conditions the court may give to secure the judgment sum. The application is opposed and there is a replying affidavit sworn by the plaintiff.
It has now transpired that the 1st defendant made an offer to pay part of the decretal sum pending the hearing and determination of the appeal. This has been confirmed by both parties. The provisions of Order 42 Rule 6 of the Civil Procedure Rules are clear. The application has been filed timeously and it is true that the plaintiff has no known source of income. The apprehension on the part of the defendant that if the decretal sum is paid to the plaintiff, and the appeal subsequently succeeds it may lead to substantial loss is well founded. Recovery thereof may become a challenge.
The 1st defendant has offered security which in my view is reasonable. Accordingly this application succeeds on the following conditions. There shall be a stay of execution of the decree herein on condition that the 1st defendant shall pay to the plaintiff a sum of Kshs. 2,000,000/= out of the decretal sum. The balance of the decretal sum shall be deposited in an interest earning account in the joint names of both advocates on record.
These two conditions shall be complied with within 30 days from the date of this ruling and the costs of this application shall be on appeal.
Dated, signed and delivered at Nairobi this 22nd Day of February, 2017
A. MBOGHOLI MSAGHA
JUDGE