[2015] KEHC 6149 (KLR)
The court found that the appellant had shown willingness to provide security and that the interests of justice would be served by granting a conditional stay of execution. The stay was granted on the condition that the decretal sum be deposited in court or in an interest-earning account in the joint names of both...
Source-derived case information.
- Citation
- [2015] KEHC 6149 (KLR)
- Parties
- Appellant: Invesco Assurance Company Ltd; Respondent: Alice Gesare Mokua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 140 of 2013
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Invesco Assurance Company Ltd
Appellant
Alice Gesare Mokua
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the appellant has demonstrated substantial loss if stay is not granted.
- 3 Whether security for the due performance of the decree has been offered.
Ratio Decidendi
The court found that the appellant had shown willingness to provide security and that the interests of justice would be served by granting a conditional stay of execution. The stay was granted on the condition that the decretal sum be deposited in court or in an interest-earning account in the joint names of both parties within 30 days, failing which execution would proceed. This approach balances the appellant's right to appeal with the respondent's right to the fruits of judgment.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Stay of execution granted pending appeal on condition that the decretal sum is deposited in court or in an interest-earning account in the joint names of both parties within 30 days from the date of the ruling.
- In default of deposit within 30 days, execution to issue.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 140 OF 2013
INVESCO ASSURANCE COMPANY LTD....… APPELLANT/APPLICANT
VERSUS
ALICE GESARE MOKUA …………………………............. RESPONDENT
(Being an appeal from the Ruling of the Senior Resident Magistrate’s Court at Kajiado of Civil Case No. 268A of 2012 dated 19th June 2013)
************************************
(Before B. Thuranira Jaden J)
R U L I N G
1. The application dated 3/7/2013 seeks orders that pending the hearing and determination of this application inter-partes, this Honourable Court be pleased to order interim stay of execution of the lower court’s ruling entered against the Defendant/Appellant on the 19th day of June 2013 in Kajiado SRMC No. 268A of 2012.
2. According to the affidavit in support, the Applicant’s suit in the lower court was struck out thereby exposing the Applicant to execution proceedings.
3. The application was opposed. According to the replying affidavit, the Appellant has not demonstrated that he would suffer substantial loss and no security has been offered for the due performance of the decree.
4. During the hearing of the application, the Applicants submitted that they were ready to deposit security. The Respondent’s position was that if the application is allowed, the decretal sum should be deposited in court.
5. This court is persuaded to allow the stay but on condition that the decretal sum be paid in court or in an interest earning account of both parties within 30 days from date hereof. In default execution to issue.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 19thday of February2015.
………………………………………
B. THURANIRA JADEN
JUDGE