[2008] KEHC 256 (KLR)
The court found that it would be premature to assess the merits of the applicant's appeal at this stage and emphasized the importance of preserving the right of appeal. The applicant had deposited Kshs.400,000 as security, but the amount at risk was about Kshs.802,788, making the existing security inadequate. The...
Source-derived case information.
- Citation
- [2008] KEHC 256 (KLR)
- Parties
- Applicant: Fredrick Nganga Kahuro; Respondent: Kuuri J. Ngethe; Respondent: Njuguna W. Mugane; Respondent: Peter N. Mugereki; Respondent: John P. M. Gatete; Respondent: Gerald N. Mruttu; Respondent: Paul K. Wanjohi; Respondent: David N. Ngotho; Respondent: Jesse A N Kamau; Respondent: Margaret N. Ndungu; Respondent: Lorna C. Tumbo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 419 of 2008
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal granted on conditions.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Decree, Summary Judgment, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Nganga Kahuro
Applicant
Kuuri J. Ngethe
Respondent
Njuguna W. Mugane
Respondent
Peter N. Mugereki
Respondent
John P. M. Gatete
Respondent
Gerald N. Mruttu
Respondent
Paul K. Wanjohi
Respondent
David N. Ngotho
Respondent
Jesse A N Kamau
Respondent
Margaret N. Ndungu
Respondent
Lorna C. Tumbo
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the security already deposited by the applicant is sufficient for the stay of execution.
- 3 Whether the applicant has demonstrated substantial loss if the stay is not granted.
Ratio Decidendi
The court found that it would be premature to assess the merits of the applicant's appeal at this stage and emphasized the importance of preserving the right of appeal. The applicant had deposited Kshs.400,000 as security, but the amount at risk was about Kshs.802,788, making the existing security inadequate. The court therefore granted a conditional stay of execution, requiring the applicant to deposit an additional Kshs.800,000 into an interest-earning account in the joint names of the parties' advocates within 21 days, with the Kshs.400,000 already deposited to be included as part of this sum. The stay would lapse if these conditions were not met or if the appeal was not disposed of...
Court Disposition
Application for stay of execution pending appeal granted on conditions.
Orders
- The applicant shall deposit Kshs.800,000 into an interest earning account in the joint names of the parties’ advocates within 21 days.
- The Kshs.400,000 already deposited by the applicant into court shall be released to the parties’ advocates as part of the money to be deposited into the interest earning account.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 419 of 2008
FREDRICK NGANGA KAHURO….…....…………APPLICANT
VERSUS
KUURI J. NGETHE………………………...1ST RESPONDENT
NJUGUNA W. MUGANE………………….2ND RESPONDENT
PETER N. MUGEREKI…….………...……3RD RESPONDENT
JOHN P. M. GATETE…….…………….….4TH RESPONDENT
GERALD N. MRUTTU…….…………….....5TH RESPONDENT
PAUL K. WANJOHI…….……….…………6TH RESPONDENT
DAVID N. NGOTHO…..…………...……….7TH RESPONDENT
JESSE A N KAMAU………………….……8TH RESPONDENT
MARGARET N. NDUNGU….………….….9TH RESPONDENT
LORNA C. TUMBO……….………………10TH RESPONDENT
R U L I N G
The applicant, Fredrick Nganga Kahuro, being dissatisfied by an order made by the SRM in Milimani CMCC No.11464 of 2006, rejecting his application to set aside summary judgment which had been entered against him, has filed an appeal against the said order. By a notice of motion dated 19th August, 2008, the applicant has moved this court seeking an order of stay of execution of the judgment and decree pending the hearing and determination of his appeal. The applicant maintains that unless the order of stay is granted he will be required to pay a sum of Kshs.1,219,996/= and this will render his appeal which has good chances of success a mere academic exercise.
The respondents object to the application contending that the applicant’s appeal has no chances of success as the applicant had admitted the respondents’ claim, and judgment was therefore entered for admission. It was contended that the applicant had not demonstrated that he will suffer any substantial loss if the orders sought are not granted. The respondents further maintained that the sum of Kshs.400,000/= which was deposited in court, pursuant to a court order, was not sufficient security for the decree.
I have carefully considered the application, the contending arguments of the parties and the authority which was cited. It is premature at this stage to prejudge the merits of the applicant’s appeal. Indeed, it is important that the applicant has an opportunity to exercise that right. I do note that the applicant has already deposited a sum of Kshs.400,000/= in court as security. However, it is evident from a copy of the attachment by Daystar Auctioneers, annexed to the applicant’s application, that the amount is about Kshs.802,788/=. The security provided is therefore not adequate. Accordingly, I will grant the order for stay of execution pending appeal on the following conditions: -
(i) That the applicant shall deposit a sum of Kshs.800,000/= into an interest earning account in the joint names of the parties’ advocates within 21 days from today.
(ii) That the sum of Kshs.400,000/= already deposited by the applicant into court shall be released to the parties’ advocates as part of the money to be deposited into the interest earning account.
(iii) The applicant shall file and serve a record of appeal within 90 days from the date hereof and take all necessary action to facilitate the speedy disposal of the appeal.
(iv) In the event that the applicant fails to comply with condition No.(i) or (ii) above, the order for stay of execution shall lapse.
(v) If the appeal is not disposed off within 12 months from today, the order of stay of execution shall lapse.
Those shall be the orders of this court.
Dated and delivered this 16th day of December, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Gatuguta for the appellant/applicant
Advocate for the respondent absent