[2009] KEHC 646 (KLR)
The court found that the applicant had moved the court promptly after filing the memorandum of appeal and that the decree was for a specified sum of money. The applicant had already deposited KShs.100,000 in court and provided a bank guarantee for the balance of KShs.150,000, thereby satisfying the requirement for...
Source-derived case information.
- Citation
- [2009] KEHC 646 (KLR)
- Parties
- Appellant: Gabriel Ngunyangi t/a Revival Agencies; Respondent: William Miti Michugu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 481 of 2009
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Application for stay of execution granted with conditions.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Ngunyangi t/a Revival Agencies
Appellant
William Miti Michugu
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether adequate security has been provided for the due performance of the decree.
Ratio Decidendi
The court found that the applicant had moved the court promptly after filing the memorandum of appeal and that the decree was for a specified sum of money. The applicant had already deposited KShs.100,000 in court and provided a bank guarantee for the balance of KShs.150,000, thereby satisfying the requirement for security. In the circumstances, the court held that it was appropriate to grant a stay of execution, subject to the conditions outlined, including the maintenance of the security and the expeditious prosecution of the appeal. Failure to comply with these conditions would result in the discharge of the stay order.
Court Disposition
Application for stay of execution granted with conditions.
Orders
- The sum of KShs.100,000 deposited in court by the appellant shall be released to the parties' counsel to be deposited into an interest earning account in the joint names of the parties' advocates within 21 days.
- The appellant shall provide a bank guarantee for KShs.150,000 to remain in force for the next 12 months within 21 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 481 of 2009
GABRIEL NGUNYANGI t/a
REVIVAL AGENCIES...……. APPELLANT
VERSUS
WILLIAM MITI MICHUGU……………………………. RESPONDENT
R U L I N G
1. By a Notice of Motion dated 12th October, 2009 Gabriel Ngunyangi t/a Revival Agencies hereinafter referred to as the applicant, seeks an order of stay of execution of the ruling made in the Chief Magistrate’s Court in Civil Case No. 150 of 2009, on the 21st August, 2009, pending the hearing and final determination of the appeal. The applicant maintains that he has an arguable appeal and that unless the orders sought are granted, he will suffer irreparable loss, as the respondent is going to levy execution against him.
2. Pursuant to orders which were issued on 13th October, 2009 and 22nd October, 2009, the applicant has deposited a sum of KShs.100,000/= into this Court. The applicant has also provided security in the form of a bank guarantee for Kshs.150,000/=.
3. The application is opposed on the grounds that the applicant has not shown the substantial loss that he will suffer. It is contended that the money subject of the decree can be refunded by the respondent.
4. I have considered the application which is before me. I do note that the application was brought about a month after the filing of memorandum of appeal. It is true that the decree is for a specified sum of money. The appellant has however deposited a sum of Kshs.100,000/= in cash and has also provided a bank guarantee for the balance. In the circumstances I think it is appropriate that an order for stay of execution do issue.
5. Accordingly, I grant the application and issue an order for stay of execution on the following terms:
(i) The sum of Kshs.100,000/= deposited in Court by the appellant shall be released to the parties’ counsel to be deposited into an interest earning account with a reputable financial institution in the joint names of the parties’ advocates within 21 days from the date hereof.
(ii) The appellant shall provide a bank guarantee for a sum of Kshs.150,000/= to remain in force for the next 12 months within 21 days from today;
(iii) The appellant shall file and serve a record of appeal within 90 days from the date hereof.
(iv) The appellant shall take all necessary action to facilitate the speedy disposal of this appeal. In the event that the appellant fails to comply with condition No. (ii) or (iii) above, or the appeal is not disposed of within 12 months from the date hereof, the order for stay of execution shall be discharged unless otherwise extended by the Court.
(v) Costs of this application shall be costs in the appeal.
Dated and delivered this 12th day of November, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Ogessa for the appellant
Mugo for the respondent
Eric, court clerk