[2011] KEHC 581 (KLR)
The court found that the appellants would suffer substantial loss if stay of execution was not granted, particularly because the Co-operative Tribunal rendered its decision without giving the appellants an opportunity to be heard. The court held that the right of appeal should not be rendered nugatory by execution...
Source-derived case information.
- Citation
- [2011] KEHC 581 (KLR)
- Parties
- Appellant: James Otari Muhanji; Appellant: Alfred Khadambi; Appellant: Obwoli Kaveli Obwoli; Appellant: John K. Kidake; Appellant: Wilson Matendechere; Appellant: Zablon Musumba; Respondent: Vihiga Teachers Sacco Ltd
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 168 of 2010
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Application for stay of execution pending appeal granted, subject to conditions.
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Otari Muhanji
Appellant
Alfred Khadambi
Appellant
Obwoli Kaveli Obwoli
Appellant
John K. Kidake
Appellant
Wilson Matendechere
Appellant
Zablon Musumba
Appellant
Vihiga Teachers Sacco Ltd
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 2 Whether the appellants would suffer substantial loss if stay is not granted.
- 3 Whether the appellants have provided adequate security for the due performance of the decree.
Ratio Decidendi
The court found that the appellants would suffer substantial loss if stay of execution was not granted, particularly because the Co-operative Tribunal rendered its decision without giving the appellants an opportunity to be heard. The court held that the right of appeal should not be rendered nugatory by execution of the decree before the appeal is heard. However, to balance the interests of both parties, the court required the appellants to deposit 30% of the decretal sum (including advocate's costs) in a joint interest-earning account within thirty days as security for due performance. Failure to comply would result in automatic vacation of the stay order. The respondent was awarded...
Court Disposition
Application for stay of execution pending appeal granted, subject to conditions.
Orders
- Stay of execution of the decrees issued by the Co-operative Tribunal in Case Nos. 81, 82, 87, 90, 91 & 93 of 2010 granted pending hearing and determination of the appeal.
- Each appellant (except those who have compromised with the respondent) to deposit 30% of the decretal sum (including advocate's costs) in a joint interest-earning account in the names of counsel for both parties within thirty days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO. 168 OF 2010
JAMES OTARI MUHANJI...........................................................................................1ST APPELLANT
ALFRED KHADAMBI..................................................................................................2ND APPELLANT
OBWOLI KAVELI OBWOLI.......................................................................................3RD APPELLANT
JOHN K. KIDAKE........................................................................................................4TH APPELLANT
WILSON MATENDECHERE.......................................................................................5TH APPELLANT
ZABLON MUSUMBA..................................................................................................6TH APPELLANT
V E R S U S
VIHIGA TEACHERS SACCO LTD..................................................................................RESPONDENT
R U L I N G
The appellants filed an application under the provisions of Order 42 Rule 6(1) & (2)of theCivil Procedure Rules seeking orders of this court to stay the execution of the decrees issued by the Co-operative Tribunal in Case Nos. 81, 82, 87, 90, 91 & 93 of 2010 pending the hearing and determination of the appeal. The application is supported by the annexed affidavit of James Otari Muhanji and on the grounds stated on the face of the application. The application is opposed. Isaiah Amuko, the chairman of the respondent swore a replying affidavit in opposition to the application. At the hearing of the application, this court heard oral submissions made by Mr. Anziya for the appellants and Mr. Fwaya for the respondent.
This court has carefully considered the said rival submissions. It has also considered the pleadings filed by the parties herein in support of their respective opposing positions. The application before this court is for stay of execution pending the hearing and determination of the appeal. Under Order 42 Rule 6(2)of theCivil Procedure Rules, for the appellants to succeed in their application, they must establish that they would suffer substantial loss if stay of execution is not granted. They must further be prepared to provide security for the due performance of the decree. Finally, the application seeking to stay execution of the decree must be presented to the court without undue delay. In the present application, this court is prepared to accept that the appellants would suffer substantial loss if stay of execution is not granted. It appeared that the Co-operative Tribunal rendered its decision without giving the appellants the opportunity to be heard. The appellants will therefore suffer substantial loss if the decree is executed before they have been given a chance to ventilate their appeal. Every litigant who is dissatisfied with the decision of a subordinate court, has the constitutional right of appeal to a higher court. However, for such a litigant to exercise his right of appeal, he must not do so as to prejudice the opponent. That is why there is a requirement that the appellant posts security for the due performance of the decree before the grant of stay.
In the present application, after evaluating the facts of this application, this court will exercise its discretion and grant an order staying the execution of the decrees issued by the Co-operative Tribunal in the cases mentioned above pending the hearing and determination of the appeal. Each appellant (save those who have compromised their cases with the respondent) will be required to deposit in a joint interest earning account in the names of counsel for the appellants and counsel for the respondents 30% of the decretal sum (including the advocates costs) within thirty (30) days of today’s date or in default thereof, the order of stay granted by this court shall stand automatically vacated. The respondent shall be granted the costs of this application in any event.
DATED AT KAKAMEGA THIS 4TH DAY OF OCTOBER 2011.
L. KIMARU
J U D G E