[2022] KEELC 2009 (KLR)
The court found that the applicant had demonstrated the risk of substantial loss if execution proceeded before the appeal was heard, as the respondent had been awarded a significant sum in general damages and costs. The court exercised its discretion to grant a conditional stay of execution, subject to the applicant...
Source-derived case information.
- Citation
- [2022] KEELC 2009 (KLR)
- Parties
- Appellant: Gladys Kaluyu Mugambi; Respondent: Gedion Kabiki Kirera
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E003 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal, subject to deposit of security.
- Legal Topics
- Stay of Execution, Security for Costs, Appeals From Lower Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Kaluyu Mugambi
Appellant
Gedion Kabiki Kirera
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the applicant has demonstrated substantial loss may result if stay is not granted.
- 3 Whether security for the due performance of the decree should be ordered.
Ratio Decidendi
The court found that the applicant had demonstrated the risk of substantial loss if execution proceeded before the appeal was heard, as the respondent had been awarded a significant sum in general damages and costs. The court exercised its discretion to grant a conditional stay of execution, subject to the applicant depositing the decretal sum of Kshs 700,000 as security within 21 days. Failure to comply would result in the automatic lapse of the stay. The court also directed that the respondent be served with the orders within 10 days and set the matter for inter partes hearing. The decision balanced the interests of both parties and ensured the due performance of the decree in the event...
Court Disposition
Conditional stay of execution granted pending appeal, subject to deposit of security.
Orders
- Conditional stay of execution of the judgment/decree in Isiolo ELC Case No. 12 of 2017 granted, subject to the applicant depositing Kshs 700,000 with court within 21 days.
- If the applicant fails to deposit the sum within 21 days, the conditional stay shall automatically lapse.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT
AT ISIOLO
ELC APPEAL NO. E003 OF 2021
GLADYS KALUYU MUGAMBI.................................................APPELLANT/APPLICANT
-VERSUS-
GEDION KABIKI KIRERA..............................................................................RESPONDENT
RULING
1. This application is dated 1st December, 2021 and seeks the following orders:
1. THATthis Honourable Court be pleased to certify this application urgent and hear it ex-parte in the first instance
2. THATthis Honourble Court be pleased to order stay of execution of the Judgment/Decree and all the consequential orders thereto issue 23/11/2021 in Isiolo Elc Case No. 12 of 2017 pending the inter parties hearing and determination of this application or until further orders of this court
3. THATthis Honourable Court be pleased to order stay of execution of the Judgement/Degree and all the Consequential orders issued on 23/11/2021 in Isiolo ELC Case No. 12 of 2017 pending the hearing and determination of this Appeal or until further orders of this Court.
4. THATcosts for this application be provided for.
2. The application is supported by the affidavit of Gladys Kaluyu Mugambi and has the following grounds:
1. The Lower Court delivered the Judgment on 23/11/2021 in which it awarded the Respondent Ksh. 700,000/= general damages and costs of the suit.
2. The Appellant was aggrieved by the Judgment and she filed the appeal herein.
3. The appeal herein has overwhelming chances of success
4. The respondent may execute the Lower Court Judgment against the Appellant anytime.
5. The appellant stand to suffer substantial loss if execution is done before this appeal is heard and determined.
6. The appeal herein is likely to be rendered nugatory in the event it succeeds after execution has already been done.
3. Upon perusal of the applications and the annexed supporting documents, the following orders are issued:
a) Conditional stay of the execution of the Judgement or decree issued on 13/11/2021 in Isiolo ELC Case No. 12 of 2017 is hereby granted subject t0o the applicant/appellant depositing with court as security the sum of Kshs 700,000/= within 21 days of today FAILING WHICH the conditional stay granted herein shall automatically lapse.
b) The Appellant/Applicant should properly serve upon the respondent with the orders issued by the court within 10 days of today.
c) The application will be heard interpartes on 14/3/2022
DELIVERED IN CHAMBERS AT ISIOLO THIS 24TH DAY OF JANUARY, 2022 IN THE PRESENCE OF:
Court Assistant: Balozi
.......................................................
HON. JUSTICE P. M NJOROGE
ELC, JUDGE