[2021] KEHC 594 (KLR)
The court found that the only issue in dispute between the parties was the mode of providing security for the stay of execution. Both parties agreed to a stay pending appeal, but differed on whether security should be by bank guarantee or by depositing the decretal sum in a joint interest-earning account. The court...
Source-derived case information.
- Citation
- [2021] KEHC 594 (KLR)
- Parties
- Appellant: Jacob Mwangi Kioria; Appellant: Grace Wakanyi Mwangi; Respondent: Gilbert Kuria Irungu
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E055 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Notice of Motion settled by consent with directions on security and stay.
- Legal Topics
- Stay of Execution, Security for Costs, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Mwangi Kioria
Appellant
Grace Wakanyi Mwangi
Appellant
Gilbert Kuria Irungu
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the lower court's judgment pending appeal.
- 2 What is the appropriate form of security to be furnished by the applicants for the grant of stay.
Ratio Decidendi
The court found that the only issue in dispute between the parties was the mode of providing security for the stay of execution. Both parties agreed to a stay pending appeal, but differed on whether security should be by bank guarantee or by depositing the decretal sum in a joint interest-earning account. The court exercised its discretion and determined that depositing the decretal sum in an interest-earning account held by both advocates would best secure the interests of both parties and expedite the appeal process. The court therefore granted a stay of execution on condition that the applicants deposit the decretal sum in such an account, and directed the applicants to file and serve...
Court Disposition
Notice of Motion settled by consent with directions on security and stay.
Orders
- Stay of the orders/decree by the Hon. Principal Magistrate in Kajiado CMCC No. 150 of 2019 pending hearing of the intended appeal.
- Applicants to furnish security by paying decretal sum to be deposited in an interest-earning account held by both advocates.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CIVIL APPEAL NO. E055 OF 2021
JACOB MWANGI KIORIA.............................................1ST APPELLANT/APPLICANT
GRACE WAKANYI MWANGI.......................................2ND APPELLANT/APPLICANT
VERSUS
GILBERT KURIA IRUNGU.........................................................................RESPONDENT
RULING
The two applicants have brought this Notice of Motion dated 29th September 2021 seeking, inter alia, to set aside the Judgment and decree of the lower court in Kajiado CMCC 150 of 2019 delivered on 15th September 2021 pending the hearing and determination of this Application and the Appeal herein, as well as to have the court allow the Applicants to furnish the court with Security in the form of a Bank Guarantee from Diamond Trust Bank (DTB). The matter came today for directions. Ms Onacha appeared for the Applicants while Mr. Maina appeared for the Respondent. Both counsel informed that court that they have discussed the matter with a view to reaching a workable agreement. Counsel for the Respondent contemplated conceding to the Application for stay on certain conditions which the two could not agree on. Ms Onacha prefers having her client provide security by way of a Bank Guarantee while Mr. Maina prefers that the Applicants pay decretal amount to the Respondent to be deposited in an interest earning account held by both counsel. The further agreed to have the Applicants file Record of Appeal and set the Appeal down for hearing within 60 days. Because they could not agree on the mode of security, they asked the court to intervene and give directions.
I have considered this matter. In my considered view, it will safe court’s time to have this application disposed off in the manner proposed and agreed by both counsel. For this reason, and given that the only issue unresolved is the mode of providing security, I hereby mark the Notice of Motion dated 29th September 2021 settled in the following terms:
1. This court grants stay of the orders/decree by the Hon. Principal Magistrate in Kajiado CMCC No. 150 of 2019 pending the hearing of the intended appeal herein.
2. The Applicants are ordered to furnish security by way of paying decretal sum which amount shall be deposited in an interest earning account held by the two advocates.
3. The Applicants shall within 60 days file and serve the record of appeal and set the same down for hearing.
4. Costs of this application shall follow the cause.
Orders shall issue accordingly.
DATED, SIGNED AND DELIVERED THIS 2ND NOVEMBER 2021.
S.N.MUTUKU
JUDGE