[1999] KEHC 173 (KLR)
The court found that the defendant had been lax in prosecuting the appeal, having only filed a notice of appeal and not the substantive appeal since judgment was delivered in 1996. However, the court recognized the legitimate concern that, should the appeal on quantum succeed, the defendant may not be able to...
Source-derived case information.
- Citation
- [1999] KEHC 173 (KLR)
- Parties
- Plaintiff: Jacinta Wangari; Defendant: Kenya Bus Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6577 of 1991
- Procedural Posture
- Stay Application / Ruling on Second Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Appeals Process, Decretal Sum, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Wangari
Plaintiff
Kenya Bus Services Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Second Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the defendant has demonstrated sufficient cause for the grant of stay of execution.
- 3 What conditions, if any, should be imposed for the grant of stay.
Ratio Decidendi
The court found that the defendant had been lax in prosecuting the appeal, having only filed a notice of appeal and not the substantive appeal since judgment was delivered in 1996. However, the court recognized the legitimate concern that, should the appeal on quantum succeed, the defendant may not be able to recover the decretal sum from the plaintiff if execution proceeds. To balance the interests of both parties, the court granted a conditional stay of execution: the defendant must deposit the outstanding balance of the decretal sum, together with accrued interest, into a joint interest-earning account in the names of counsel for both parties within 30 days. Failure to comply would...
Court Disposition
Conditional stay of execution granted.
Orders
- The application for stay of execution is allowed on condition that the balance of the decretal sum of KES 1,078,910 plus accrued interest is deposited in a joint interest-earning account in the names of counsel for both parties within 30 days.
- In default of such deposit, the Deputy Registrar is at liberty to allow the plaintiff to proceed with execution of the decree when the notice to show cause comes up for hearing.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 6577 of 1991
JACINTA WANGARI........................................................ PLAINTIFF
-versus-
KENYA BUS SERVICES LTD..................................... DEFENDANT
RULING
This is the second application brought by theApplicant/Defendant under order XLI rule 4 of the Civil ProcedureRules for stay of execution of the decree and Judgment of thiscourt delivered on the 4th of June, 1996 (Juma, J.) pending theappeal to the Court of Appeal. A similar application filed on the22nd of July, 1996, was dismissed by this court on the 21st of July,1998 for want of prosecution.
I have considered all the matters that were urged before me incounsel submissions and in the affidavits filed. It would appearto me that the Applicant is quite lax in prosecuting their intendedappeal. Despite the fact that Judgment was delivered way back onthe 4th of June, 1996, no appeal has been lodged in the court ofappeal apart from the Notice of appeal. I would add that theApplicant's counsel has been rather arrogant to his learnedcolleague by refusing to answer his correspondence in respect ofhis desire to sort out the issue of settlement of the decretal sum.All these applications for stay of execution, to my mind, has beenprompted by the Notice to show case now pending before the DeputyRegistrar why execution should not issue. However, the Applicant'scounsel, has to his credit already paid part of the decretal sumamounting to shs. 1. 5 million and the balance now outstanding isthe subject of the intended execution.
I agree with the fears expressed by the Applicant's counselthat in the event of a successful appeal on quantum, they might notbe able to recover any money from the Respondent/Plaintiff once thesame has been paid out. It is necessary therefore that in order towake up the Applicant/Defendant and at the same time preservethebalance of the amount due, I will allow this application uponcondition that the whole balance, of the decretal sum of shs.1,078,910/- together with accrued interest to date be deposited ina joint interest earning account in the names of counsel for theparties within 30 days from the date hereof and in default thereof,the Deputy Registrar may be at liberty to allow the Respondent/Plaintiff to proceed with execution of the decree whenher notice to show cause comes up for hearing. it is so ordered.
Dated and delivered at Nairobi this 10th day of February,1999.
S. OGUK
JUDGE