[2018] KEHC 5659 (KLR)
The court found that both parties agreed to the stay of execution but differed on the conditions. The court noted that no evidence was presented to suggest the respondent would be unable to refund the decretal sum if the appeal succeeded. Exercising its discretion, the court ordered the applicant to deposit...
Source-derived case information.
- Citation
- [2018] KEHC 5659 (KLR)
- Parties
- Plaintiff: Fidelis Wambua Musembi; Defendant: Royal Media Services
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 47 of 2007
- Procedural Posture
- Stay Application / Post Judgment, Pending Appeal
- Outcome
- Stay of execution granted on condition of partial deposit and payment.
- Judges
- JK Mulwa
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelis Wambua Musembi
Plaintiff
Royal Media Services
Defendant
Procedural Posture
Stay Application / Post Judgment, Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree pending appeal.
- 2 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that both parties agreed to the stay of execution but differed on the conditions. The court noted that no evidence was presented to suggest the respondent would be unable to refund the decretal sum if the appeal succeeded. Exercising its discretion, the court ordered the applicant to deposit Kshs.2,000,000 in a joint interest earning account and pay the balance of Kshs.2,000,000 to the respondent within 30 days. Failure to comply would result in the lapse of the stay orders. The court's decision was guided by the principles under Order 42 Rule 6 of the Civil Procedure Rules and relevant case law, emphasizing the need for security and prevention of substantial loss.
Court Disposition
Stay of execution granted on condition of partial deposit and payment.
Orders
- The applicant shall deposit Kshs.2,000,000 in a joint interest earning account in the parties' advocates' names in a reputable bank within Nakuru Town within 30 days.
- The balance of Kshs.2,000,000 shall be paid to the respondent within 30 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NUMBER 47 OF 2007
FIDELIS WAMBUA MUSEMBI...............................PLAINTIFF/RESPONDENT
-VERSUS-
ROYAL MEDIA SERVICES......................................DEFENDANT/APPLICANT
RULING
1. Judgment in this suit was delivered on the 22nd February 2018.
The plaintiff was awarded general damages in the sum of Kshs.4,000,000/=. That sum has not been paid. Instead, an Appeal has been filed challenging the whole judgment.
2. By an application dated 22nd March 2018, the Appellant seeks an order for stay of execution of the decree pending hearing and determination of the Appeal to the Court of Appeal – as a Constitutional right under Article 48 of the Constitution, 2010.
3. The application is opposed by a Replying Affidavit sworn by the Respondent, Fidelis Wambua Musembi, a Senior Nakuru Advocate of over twenty-five years practice. He avers that in the unlikely event that the intended Appeal succeeds, he would be capable of refunding/repaying the decretal sum and that nothing was placed before the court to demonstrate his inability to pay.
4. When parties appeared before me on the 5th June 2018 for argument of the application, they both submitted that they are not opposed to the stay orders, but urged that the court determines the conditions of the stay orders.
The applicant is willing and ready to deposit in an interest earning joint account of the advocates a sum of Kshs.1. 5 Million while the respondent proposed Kshs.2 million and the balance be withheld by the Applicant pending hearing of the appeal.
5. I have considered the above proposals, and the authorities cited. Under Order 42 rule 6(1) and (2) of the Civil Procedure Rules,the conditions that a party ought to meet for an order of stay to be granted are well stated. I need not reproduce them here.
6. Substantial loss is the cornerstone– C.A No.93 of (2017) Jubilee Hauliers Ltd and Others -vs- Brian Muchiri Waihenya (2017) e KLR.
The court must satisfy itself that the conditions set under Order 42 Rule 6(2) (a)(b) – that no substantial loss will be occasioned if the order is denied and that security for due performance of the decree is assured.
7. The decretal sum is Kshs.4,000,000/= (without costs).
I have stated above that no evidence was placed before the court to place a doubt in its mind that the Respondent would be unable to repay so as to necessitate him rebutt the allegations.
I shall therefore exercise my unfettered discretion and order as follows:
1. That the Applicant/Defendant shall deposit a sum of Kshs.2,000,000/= in a joint interest earning account in the parties Advocates names, in a reputable Bank within Nakuru Town within 30 days of this order.
2. That the balance of Kshs.2,000,000/= shall be paid to the Respondent within 30 days of this order.
3. That costs of the application shall be costs in the cause.
4. That failure by the applicant, Royal Media Services Limited to comply with orders 1 and 2 within the period stated, the stay orders will automatically lapse.
Dated, signed and delivered this 6th Day of June 2018.
J.N. MULWA
JUDGE