[2014] KEHC 3206 (KLR)
The court determined that while stay of execution pending appeal had been agreed by consent, the issue of security required judicial determination. Considering the total judgment sum and the need to balance the interests of both parties, the court ordered the appellant to deposit Kshs. 600,000 in a joint interest...
Source-derived case information.
- Citation
- [2014] KEHC 3206 (KLR)
- Parties
- Appellant: Gullo Richard Otieno; Respondent: Roseline Anyango Oduor & Hellen Awino Onyango (suing as the legal representative in the estate of Chrispine Omondi Oduor (deceased))
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal and Security for Costs
- Outcome
- Application for stay of execution pending appeal allowed on terms; security for costs ordered.
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Security for Costs, 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
Gullo Richard Otieno
Appellant
Roseline Anyango Oduor & Hellen Awino Onyango (suing as the legal representative in the estate of Chrispine Omondi Oduor (deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal and Security for Costs
Legal Issues
- 1 Whether the court should order security for costs as a condition for stay of execution pending appeal.
- 2 What amount of security, if any, should be ordered to balance the interests of both parties.
Ratio Decidendi
The court determined that while stay of execution pending appeal had been agreed by consent, the issue of security required judicial determination. Considering the total judgment sum and the need to balance the interests of both parties, the court ordered the appellant to deposit Kshs. 600,000 in a joint interest account of both parties' counsel within 30 days and to pay the agreed costs of Kshs. 71,935 to the respondent within the same period. Failure to comply would entitle the respondent to execute for the full amount. The court exercised its discretion to ensure neither party was unfairly disadvantaged, in line with Order 42 Rule of the Civil Procedure Rules.
Court Disposition
Application for stay of execution pending appeal allowed on terms; security for costs ordered.
Orders
- The appellant shall deposit Kshs. 600,000 in a joint interest account of both the appellant and the respondent's counsel within 30 days from the date herein pending the hearing and determination of the appeal.
- The appellant shall pay the agreed costs of Kshs. 71,935 to the respondent within 30 days from the date herein.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 32 OF 2014
GULLO RICHARD OTIENO............................................................APPELLANT
VERSUS
ROSELINE ANYANGO ODUOR & HELLEN AWINO ONYANGO(suing as the legal representative in the estate of)CHRISPINE OMONDI
ODUOR (DECEASED)...............................................................RESPONDENTS
R U L I N G
The notice of motion filed by the appellant dated 29-5-2014 seeking stay of execution pending appeal has been partially compromised by the consent of the parties herein dated 30-6-2014. In the said consent the parties agreed to have stay of execution pending appeal but were unable to agree on the issue of security and left it for the court to decide.
Order 42 Rule of the Civil Procedure Rules provides that where the court grants stay of execution pending appeal it equally has a discretion to order a provision of security pending the intended appeal.
The supporting affidavit of Lilian Munyiri depones that the respondents are persons of straw and should the entire decretal amount be paid then they shall not be able to pay back in the event that the appeal succeeds.
The question of whether to order for security although discretional must be viewed from the position that neither disadvantages the appellant nor the respondent. The entire judgment is for the sum of Kshs. 777,850/= and cost of Kshs. 71,935/=. Putting all the factors constant I do order that:
The appellant do deposit the sum of Kshs. 600,000/= in a joint interest account of both the appellant and the respondent's counsel within the next 30 days from the date herein pending the hearing and determination of the appeal.
The appellant do pay the agreed costs of Kshs. 71,935/= to the respondent within the next 30 days from the date herein.
In default of (a) and (b) above the respondent be at liberty to execute for the full amount.
Costs of this application to abide the appeal.
Dated, signed and delivered at Kisumu this 23rd day of July, 2014.
H.K. CHEMITEI
JUDGE