[2021] KEHC 3161 (KLR)
The court exercised its discretion to grant a conditional stay of execution pending appeal, finding that it would be unjust to deprive the respondent of the entire decretal sum where the appellant did not dispute liability for a portion. Accordingly, the court ordered that 40% of the damages (general and special),...
Source-derived case information.
- Citation
- [2021] KEHC 3161 (KLR)
- Parties
- Applicant: H. Khalif; Respondent: Isaac M’Imaria M’Kirea & Zipporah Mukomunene Ntundu (Suing as legal representative of the estate of Jacob Mwiti M’Imaria)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 127 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Stay Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal, with directions on payment and deposit of decretal sum.
- Judges
- CA Otieno
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appellate Conditions, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
H. Khalif
Applicant
Isaac M’Imaria M’Kirea & Zipporah Mukomunene Ntundu (Suing as legal representative of the estate of Jacob Mwiti M’Imaria)
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Pending Appeal
Legal Issues
- 1 What conditions should be imposed for the grant of stay of execution pending appeal.
- 2 Whether the respondent is entitled to a portion of the decretal sum during the pendency of the appeal.
- 3 How to balance the rights of the appellant and respondent in the context of stay.
Ratio Decidendi
The court exercised its discretion to grant a conditional stay of execution pending appeal, finding that it would be unjust to deprive the respondent of the entire decretal sum where the appellant did not dispute liability for a portion. Accordingly, the court ordered that 40% of the damages (general and special), plus trial costs, be paid to the respondent, while the remaining 60% be deposited in a joint escrow account. The court further set strict timelines for compliance, linking the continuation of the stay and the survival of the appeal to adherence to these conditions. This approach balances the right of the successful litigant to access part of the judgment sum with the appellant's...
Court Disposition
Conditional stay of execution granted pending appeal, with directions on payment and deposit of decretal sum.
Orders
- 40% of the damages (general and special), plus trial costs, to be paid to the respondent within 45 days.
- 60% of the damages to be deposited into an escrow account in the joint names of the parties' advocates within 45 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COUR OF KENYA
AT MERU
HIGH COURT CIVIL APPEAL NO. E 127 OF 2021
From the original civil suit (Maua) E020 of 2020
H. KHALIF..........................................................................................................APPLICANT
VERSUS
ISAAC M’IMARIA M’KIREA & ZIPPORAH MUKOMUNENE NTUNDU
(Suing as legalrepresentative of the estate of Jacob Mwiti M’Imaria)....RESPONDENT
RULING
1. Both parties appreciate the need to balance the rights of a successful litigant to access the decretal sum against that of the appellant to access justice and be heard and after the hearing the outcome should not be merely academic. They agree stay need be given but on terms.
2. The difference however, is what conditions to be imposed. While the appellant says that the entire sum be deposited, the respondent says a portion of 2/3 be released to the respondent even as the other 1/3 gets deposited. That position is taken on the basis that the trial the appellant submitted that liability be apportioned at 40%:60% in favour of the appellant.
3. Terms to be imposed as conditions for stay are at the discretion of the court. Where it is not the case of an appellant that the respondent is not entitled to any part of the decree, it would be unjust to keep the respondent away from the entire decretal sum. In the context and circumstances of this matter, I direct that a portion of the decree being 40% of the damages (general and special), plus the costs of the suit at trial, be paid out to the respondent while the balance of 60% of the damages be deposited into an escrow account in the joint names of the advocates for the parties.
4. I direct that the deposit and payment be made within 45 days from today and in addition, the appellant shall file and serve Record of Appeal and written submissions within 60 days from today, to enable the respondent also file and serve submissions within 30 days after service.
5. Time shall be of essence and therefore if there shall be default to effect payment and deposit as ordered the stay herein granted shall stand discharged but if the default shall be on filing the Record of Appeal and submissions, the appeal itself shall stand dismissed.
6. Mention on 2/12/2021 to confirm compliance and for further orders.
7. This appeal is now deemed admitted and directions issued.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 5TH DAY OF OCTOBER, 2021
Patrick J.O Otieno
Judge