[2007] KEHC 740 (KLR)
The court found that, although the appellant had admitted the claim, the circumstances of the admission—allegedly made after arrest and being asked to show cause—raise issues that can be canvassed on appeal. The court considered that the decree was for a monetary sum and that no prejudice would be suffered by the...
Source-derived case information.
- Citation
- [2007] KEHC 740 (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 Case 152 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment, Money Decree
- 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 / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the lower court's judgment pending appeal.
- 2 Whether the appellant's admission of the claim precludes the grant of stay of execution.
- 3 Whether the absence of annexed lower court proceedings affects the application for stay.
Ratio Decidendi
The court found that, although the appellant had admitted the claim, the circumstances of the admission—allegedly made after arrest and being asked to show cause—raise issues that can be canvassed on appeal. The court considered that the decree was for a monetary sum and that no prejudice would be suffered by the respondent if execution was stayed, provided the decretal amount was secured. Accordingly, the court exercised its discretion to grant a stay of execution on condition that the appellant deposits the decretal sum in an interest-earning account in the joint names of both counsels within 14 days. The court held that this approach was fair and just, balancing the interests of both...
Court Disposition
application for stay of execution allowed with conditions
Orders
- Stay of execution of Eldoret CM.CC.NO.150 of 2006 granted until the appeal is heard and determined, on condition that the appellant deposits the decretal amount in an interest-earning account in the joint names of both counsels within 14 days.
- Costs of the application to be in the appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL CASE 152 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.