[2024] KEHC 5933 (KLR)
The court found that the appellant had satisfied the requirements for grant of stay of execution pending appeal, particularly by offering security for the due performance of the decree. The court exercised its discretion to grant a conditional stay, requiring the appellant to deposit part of the decretal sum with...
Source-derived case information.
- Citation
- [2024] KEHC 5933 (KLR)
- Parties
- Appellant: Gillmark Petroleum Ltd; Respondent: Edwin Lukoe Ndengu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E114 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Judges
- MS Shariff
- Legal Topics
- Stay of Execution, Appeal Procedure, Security for Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gillmark Petroleum Ltd
Appellant
Edwin Lukoe Ndengu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the judgment pending determination of the appeal.
- 2 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the appellant had satisfied the requirements for grant of stay of execution pending appeal, particularly by offering security for the due performance of the decree. The court exercised its discretion to grant a conditional stay, requiring the appellant to deposit part of the decretal sum with the respondent's advocates and the balance in a joint interest earning account. This approach was adopted to ensure the respondent's interests are safeguarded while preserving the appellant's right to appeal. The court further directed timelines for compliance and filing of submissions to facilitate expeditious determination of the appeal.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- An order of stay of execution is issued against the judgment in Kisumu Small Claims Court No. E074 of 2023 until the appeal is heard and determined, subject to conditions.
- The appellant shall deposit Kshs.100,000 with the respondent’s advocates within 4 days from the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
Gillmark Petroleum Ltd v Ndengu (Civil Appeal E114 of 2023) [2024] KEHC 5933 (KLR) (22 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5933 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E114 of 2023
MS Shariff, J
May 22, 2024
Between
Gillmark Petroleum Ltd
Plaintiff
and
Edwin Lukoe Ndengu
Defendant
Ruling
I have considered the notice of motion dated 10. 5.2024, the affidavit in support thereof, the replying affidavit and the rival submissions of parties and I do hereby allow the same and make the following orders:- 1. An order of stay of execution is hereby issued against the judgment in Kisumu small Claims Court No. E074 of 2023 until this appeal is heard and determined on condition that:a.The Appellant deposits a sum of Kshs.100,000 with the Respondent’s advocates within 4 days from the date hereof.b.The balance of Kshs.250,000 to be deposited in a joint interest earning account of parties advocates within 90 days from the date hereof.
2. In the event of default in compliance with order 1(a) and (b) hereinabove the Respondent shall be at liberty to execute.
3. The Appellants are directed to file and serve their record of appeal and submissions within 14 days from the date hereof and the Respondent to file his submissions within 28 days from the date hereof.
4. Mention on 10. 7.2024 to confirm compliance.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 22ND DAY OF MAY, 2024M. S. SHARIFFJUDGE