[2021] KEHC 8762 (KLR)
The court found that although the application for stay of execution was filed promptly, the appellants failed to demonstrate what substantial loss they would suffer if the stay was not granted. Additionally, they did not offer any security for the due performance of the decree, nor did they allege that the...
Source-derived case information.
- Citation
- [2021] KEHC 8762 (KLR)
- Parties
- Appellant: Gladys Mwende Kioko; Appellant: Superordinate Investments Limited; Respondent: Pauline Wayua Mbatha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 168 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Money Decree, Security for Costs, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Mwende Kioko
Appellant
Superordinate Investments Limited
Appellant
Pauline Wayua Mbatha
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the appellants have demonstrated substantial loss if stay is not granted.
- 3 Whether the appellants have offered security for the due performance of the decree.
Ratio Decidendi
The court found that although the application for stay of execution was filed promptly, the appellants failed to demonstrate what substantial loss they would suffer if the stay was not granted. Additionally, they did not offer any security for the due performance of the decree, nor did they allege that the respondent would be unable to refund the decretal sum if the appeal succeeded. The respondent, on the other hand, affirmed her financial ability to refund the money if required. In light of these factors and the requirements of Order 42 Rule 6 of the Civil Procedure Rules, the court held that granting a stay of execution would result in injustice to the respondent. Consequently, the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
CIVIL APPEAL NO. E 168 OF 2020
GLADYS MWENDE KIOKO....................................................................................1ST APPELLANT
SUPERORDINATE INVESTMENTS LIMITED...................................................2ND APPELLANT
VERSUS
PAULINE WAYUA MBATHA........................................................................................RESPONDENT
RULING
There is a judgment in favour of the respondent against the appellants in the lower court. The appellants were aggrieved by that judgment and intend to file an appeal therefrom. The present application dated 13th August, 2020 seeks an order of stay of execution of the lower court judgment. It is supported by grounds set out and also an affidavit sworn by the 1st appellant.
The lower court judgment was delivered on 30th July, 2020 and this application was filed on 13th August, 2020. There was therefore no delay in bringing the application. The appellants have not cited Order 42 Rule 6 of the Civil Procedure Rules. That notwithstanding, I shall consider the application on merit.
There is an affidavit in reply sworn by the respondent who opposes the application. Other than the concern that the advocate for the appellant did not comply with Order 9 Rule 5 of the Civil Procedure Rules, the appellants are supposed to comply with the requirements of Order 42 Rule 6 aforesaid. Most importantly, they have to demonstrate what substantial loss they may incur if the order is not given. They are also supposed to show that the intended appeal is arguable. Ordinarily, an order for posting security would be issued in such applications.
I have related the application to the judgment of the lower court and also the plaint, a copy of which is part of the record before me. The entire dispute is premised on a transaction between the parties where the respondent is said to have advanced some money to the appellants, which the appellants failed to pay back and instead gave some cheques which were dishonoured when presented to the bank for payment.
This is a money decree. Although the appellants lodged the application in time, they have not demonstrated what substantial loss they may incur if the order is not granted. They have also not offered any security in the event the appeal is dismissed. There is also no allegation that in the event the decree is settled the respondent shall not be able to pay back the money if the appeal succeeds. On the contrary, the respondent has stated she is in a financial position to refund the decretal sum in the event the appeal succeeds.
Going by the pleadings in the lower court upon which the judgment was grounded, and considering all the circumstances relating to the dispute, a stay of execution in this matter cannot be granted without resultant injustice on the part of the respondent. The end result is that this application is dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi this 4th day of March, 2021.
A. MBOGHOLI MSAGHA
JUDGE