[2025] KEHC 8789 (KLR)
The court found that since the appellant had filed a notice of appeal to the Court of Appeal, it was prudent and just to grant a stay of execution of the decree pending the hearing and determination of the intended appeal. The court held that the security deposit of Kshs 2,000,000, which was initially deposited to...
Source-derived case information.
- Citation
- [2025] KEHC 8789 (KLR)
- Parties
- Appellant: First Assurance Company Limited; Respondent: Anthony Maina Mutahi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E405 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Review Pending Appeal to the Court of Appeal
- Outcome
- Application for stay of execution granted; security deposit to be held pending appeal; conditional order for release if record of appeal not filed within 30 days; costs in the cause.
- Judges
- LP Kassan
- Legal Topics
- Stay of Execution, Security for Costs, Review of Orders, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
First Assurance Company Limited
Appellant
Anthony Maina Mutahi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Review Pending Appeal to the Court of Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal to the Court of Appeal.
- 2 Whether the security deposit of Kshs 2,000,000 should continue to be held in court pending the outcome of the intended appeal.
- 3 Whether the orders issued on 27.06.2024 should be reviewed, set aside, or discharged.
Ratio Decidendi
The court found that since the appellant had filed a notice of appeal to the Court of Appeal, it was prudent and just to grant a stay of execution of the decree pending the hearing and determination of the intended appeal. The court held that the security deposit of Kshs 2,000,000, which was initially deposited to secure the due performance of the decree, should continue to be held in the interest-earning account pending the outcome of the appeal. The court reasoned that releasing the deposit at this stage would undermine the appellant's constitutional right of appeal. However, the court imposed a condition that if the appellant failed to file the record of appeal within 30 days from the...
Court Disposition
Application for stay of execution granted; security deposit to be held pending appeal; conditional order for release if record of appeal not filed within 30 days; costs in the cause.
Orders
- There shall be a stay of execution in Milimani CMCC No. E1254 of 2021 pending the hearing and determination of the appeal in the Court of Appeal.
- The amount of Kshs 2,000,000 deposited in court as security shall be held in court pending the hearing and determination of the appeal before the Court of Appeal.
Full Case Text
Judgment text and source record
22 paragraphs
First Assurance Company Limited v Mutahi (Civil Appeal E405 of 2022) [2025] KEHC 8789 (KLR) (Civ) (23 June 2025) (Ruling)
Neutral citation: [2025] KEHC 8789 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E405 of 2022
LP Kassan, J
June 23, 2025
Between
First Assurance Company Limited
Appellant
and
Anthony Maina Mutahi
Respondent
Ruling
1. The Appellant/Applicant moved the court by way of Notice of Motion dated 30. 09. 2024. It was brought under sections 1A, 1B, & 3A of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rule 6 and 7, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant is seeking the following orders:a.Spentb.Spentc.Spentd.That there be stay of execution in Milimani CMCC No. E1254 of 2021pending the hearing and determination of the Appeal in the Court of Appeal.e.That the amount of Kshs 2,000,000/= deposited in court as security be held in court pending the hearing and determination of the Appeal before the Court of Appeal.f.That the Honourable Court be pleased to review, set aside and/or discharge the orders issued on 27. 06. 2024. g.That the Honourable Court may grant any other or further orders the court may deem fit and just to grant.h.That costs be in the cause.
2. The application was premised on the following grounds:a.That the appeal was heard, determined, and judgment delivered on 27. 06. 2024. b.That being dissatisfied, a notice of appeal to the Court of Appeal had been filed with a request for proceedings.c.That the security deposited in court was ordered to be released to the Respondent. However, as the Appellant/Applicant had filed a notice of appeal, the security should continue being held in the joint account awaiting the outcome of the appeal to the Court of Appeal.
3. The Respondent opposed the application on the following grounds:a.That the application herein is frivolous and an abuse of the court process.b.That the Applicant has not shown that he will be unable to repay the security.c.That the Respondent is a prominent businessman with vast businesses in Nairobi and its environs.
4. The order to deposit the Kshs.2,000,000/= in the names of the Advocates on record was to ensure the appeal was heard and determined. That appeal was determined on 27. 06. 2024. The conditions for which the deposit was made have expired. This, therefore, made the Appellant apply for a stay of execution of the decree, awaiting the intended appeal on 30. 09. 2024.
5. Since the Appellant has filed a notice of appeal in the Court of Appeal dated 01. 07. 2024, it is prudent to give them the chance to pursue their intended appeal which is a constitutional right. It would therefore not be in order to release the deposit, which is in an interest-earning account. The only condition to add is that if the Appellant does not file the record of appeal to the Court of Appeal within 30 days from the date of the ruling, then the Respondent be at liberty to apply for the release of the deposit. Stay is granted pending hearing and determination of appeal.
6. Costs be in the cause.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JUNE 2025. LINUS P. KASSANJUDGEIn the presence of:-Mahuhu for the AppellantNo appearance for the RespondentCarol – Court Assistant