[2018] KEHC 1068 (KLR)
The court found that the appellant had demonstrated a real threat of execution and a right of appeal, while the respondents had not shown that they would suffer serious prejudice if a stay was granted. The application for stay was filed without undue delay. To balance the interests of both parties, the court granted...
Source-derived case information.
- Citation
- [2018] KEHC 1068 (KLR)
- Parties
- Appellant: Festus Muoka Nzelu; Respondent: Elizabeth Wangui; Respondent: Grace N. Murithi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 142 of 2018
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed on terms.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Festus Muoka Nzelu
Appellant
Elizabeth Wangui
Respondent
Grace N. Murithi
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court judgment pending appeal.
- 2 Whether the respondents will suffer prejudice if stay is granted.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the appellant had demonstrated a real threat of execution and a right of appeal, while the respondents had not shown that they would suffer serious prejudice if a stay was granted. The application for stay was filed without undue delay. To balance the interests of both parties, the court granted a conditional stay of execution: the appellant was required to pay Kshs. 500,000 to the respondents and deposit the balance of the decretal sum in an interest-earning joint account of the advocates for both parties within 30 days. This approach ensures the respondents' interests are secured while preserving the appellant's right to appeal.
Court Disposition
Application for stay of execution allowed on terms.
Orders
- Stay of execution of the lower court judgment is granted.
- The appellant shall pay the respondents Kshs. 500,000.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 142 OF 2018
FESTUS MUOKA NZELU.......................................APPELLANT
VERSUS
ELIZABETH WANGUI..................................1ST RESPODNENT
GRACE N. MURITHI....................................2ND RESPODNENT
RULING
This is an application dated 20th June, 2018. There are two orders but one substantive order sought by the applicant. That is a stay of execution of the lower court judgment delivered on 23rd February, 2018. The grounds are set out on the face of the application. The application is opposed and there is a replying affidavit sworn by the respondents.
There is a real threat of execution, yet the appellant has a right of appeal. The respondents also are entitled to the fruits of their judgment. The court has the duty to balance the interests of both parties. Liability had been agreed in the lower court. The appeal therefore is on quantum. The application was filed timeously. No serious prejudice has been demonstrated shall befall the respondents if there is stay of execution.
Considering the material presented, I hereby give an order of stay of execution on the following terms. The appellant shall pay the respondents a sum of Kshs. 500,000/=. The balance of the decretal sum shall be deposited in an interest earning account in the joint two names of the advocates on record for the parties. These conditions shall be fulfilled within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 20th Day of December, 2018.
A.MBOGHOLI MSAGHA
JUDGE