[2022] KEHC 11584 (KLR)
The court found that the appellants had demonstrated apprehension of substantial loss if execution proceeded and the respondent did not deny the claim that she may be unable to refund the decretal sum if the appeal succeeded. The respondent's willingness to accept a deposit of the decretal sum as security aligned...
Source-derived case information.
- Citation
- [2022] KEHC 11584 (KLR)
- Parties
- Appellant: Alice Wanjiru Githaiga; Appellant: Ngong Muguku Farm Limited; Respondent: Eunice Kanugu King'ori (as the legal representative of the Estate of Lucas Kimiinda (Deceased))
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E181 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of security.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alice Wanjiru Githaiga
Appellant
Ngong Muguku Farm Limited
Appellant
Eunice Kanugu King'ori (as the legal representative of the Estate of Lucas Kimiinda (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution of the decree pending appeal.
- 2 Whether security for the due performance of the decree should be furnished by the appellants.
Ratio Decidendi
The court found that the appellants had demonstrated apprehension of substantial loss if execution proceeded and the respondent did not deny the claim that she may be unable to refund the decretal sum if the appeal succeeded. The respondent's willingness to accept a deposit of the decretal sum as security aligned with the requirements of Order 42 Rule 6 of the Civil Procedure Rules. Consequently, the court granted a stay of execution of the decree pending appeal, on condition that the appellants deposit the decretal sum into a joint interest earning account held by the advocates for both parties within 30 days.
Court Disposition
Stay of execution granted on condition of security.
Orders
- There shall be stay of execution pending the hearing and determination of this appeal of the decree in Ruiru SPMCC No 64 of 2020 on condition the appellants provide the decretal sum within 30 days from the date of the ruling and the same be deposited into a joint interest earning account of the advocates in this...
- The costs of the Notice of Motion shall abide with the outcome of this appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Githaiga & another v King'ori (as the legal representative of the Estate of Lucas Kimiinda (Deceased)) (Civil Appeal E181 of 2021) [2022] KEHC 11584 (KLR) (26 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11584 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal E181 of 2021
MM Kasango, J
May 26, 2022
Between
Alice Wanjiru Githaiga
1st Appellant
Ngong Muguku Farm Limited
2nd Appellant
and
Eunice Kanugu King'ori
Respondent
as the legal representative of the Estate of Lucas Kimiinda (Deceased)
((Appeal from the judgment of the Senior Principal Magistrate’s Court at Ruiru (J. Agonda, PM) dated 16th September, 2021))
Ruling
1. An appeal is fled herein against the judgment of Ruiru SPMCC No 64 of 2020 in favour of the respondent in this appeal. That judgment was for Kshs 1,129,625. 70. The appellant filed notice of motion application dated October 15, 2021 seeking stay of execution of that decree.
2. In support of the application, 2nd appellant swore an affidavit and stated that the appellants are apprehensive that they would suffer irreparable loss if execution of the decree does proceed for they believe the respondent would be unable to refund the judgment amount in the event the appeal did succeed.
3. The above deposition was not denied nor responded to by the respondent. The resident filed grounds of opposition whereby she stated that the court should order the appellants to furnish the security for stay of execution which amounts can be deposited into joint interest earning account.
4. Orders 42 rule 6 of the Civil Procedure Rules sets out the standards upon which the court will grant stay of execution of decree pending appeal. That rule provides:-“No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
5. The respondent’s inclination to accept deposit of funds as condition for stay of execution is in tandem with the above Rule.
6. In view of the above, I order as follows in respect to the notice of motion dated October 15, 2021:-(a) There shall be stay of execution pending the hearing and determination of this appeal of the decree in Ruiru SPMCC No 64 of 2020 on condition the appellants do provide the decretal sum in that matter within 30 days from today and the same be deposited into a joint interest earning account of the advocates in this appeal.(b) The costs of the Notice of Motion shall abide with outcome of this appeal.
RULING DATED AND DELIVERED AT KIAMBU THIS 26TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court assistant : MouriceFor appellant: - Mr. NjorogeFor respondent :- No appearanceRULING DELIVERED VIRTUALLY.MARY KASANGOJUDGE