[2007] KEHC 3467 (KLR)
The court found that, although the proceedings of the lower court were not annexed, the central issue was whether the appellant should have been allowed to defend the suit. The court accepted the appellant's explanation that the admission of the claim was made after arrest and under circumstances that could be...
Source-derived case information.
- Citation
- [2007] KEHC 3467 (KLR)
- Parties
- Appellant: Jefferson Musau; Respondent: Patrick Mwangi t/a Tuema Agencies
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 43 of 2007
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- application allowed
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jefferson Musau
Appellant
Patrick Mwangi t/a Tuema Agencies
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the appellant should have been allowed to defend the suit in the lower court.
Ratio Decidendi
The court found that, although the proceedings of the lower court were not annexed, the central issue was whether the appellant should have been allowed to defend the suit. The court accepted the appellant's explanation that the admission of the claim was made after arrest and under circumstances that could be canvassed during the appeal. Given that the decree was for a monetary sum, the court held that it would be fair and just to grant a stay of execution pending the determination of the appeal, provided the appellant deposits the decretal amount in an interest-earning joint account. The court concluded that no prejudice would be suffered by the respondent under these conditions.
Court Disposition
application allowed
Orders
- Stay of execution of Eldoret CM.CC.NO.150 of 2006 granted until the appeal is heard and determined.
- Appellant to deposit the decretal amount in an interest earning account in the joint names of both counsels within 14 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
E HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 43 of 2007
JEFFERSON MUSAU:………………………...………APPELLANT
VERSUS
PATRICK MWANGI T/A TUEMA AGENCIES:…..RESPONDENT
R U L I N G
Before me is an application under Order 41 Rule 4 (1) CPR seeking for an order of stay of execution of Eldoret CM.CC.NO.150 of 2006 until this appeal is heard and determined.
The appellant/applicant had been sued by the respondent in the lower court claiming Shs.56, 000/=. Apparently no defence was filed and ex-parte judgment was entered in favour of the respondent. The appellant later applied to have the judgment set aside and he be allowed to defend the suit. In his ruling dated 27th March 2007 the court dismissed the application and hence this appeal.
Mr. Mutei for the appellant/applicant told court that the applicants appeal has high chances of success.
Mr. Cheluget opposed the application and said appeal had no chances of success as applicant admitted the claim. He said the application is only meant to delay the finalization of the matter.
I have considered the application and the rival submissions. Proceedings of the lower court were not annexed but it seems bone of contention was whether appellant should have been allowed to defend the suit or not. He is said to have admitted the claim but Mr. Mutei explained that that was after he had been arrested and was asked to show cause. This is an issue which can be canversed during the appeal. Thus though this is a money decree I feel it would be fair and just to stay the execution until the appeal is heard and determined. No prejudice will be suffered by the respondent.
In the circumstances I allow the application and order that there be stay of execution of Eldoret CM.CC.NO.150 OF 2006 until the appeal is heard and determined on condition that the appellant deposit the decretal amount in an interest earning account in the joint names of both counsels within 14 days.
Costs of this application will be in the appeal.
Dated and Delivered at Eldoret this 25th day of October, 2007.
KABURU BAUNI
JUDGE
IN THE PRESENCE OF:-
C/C - David
Ms. Wachuka for Mutei for Applicant
N/A for Responent.