[2018] KEHC 1723 (KLR)
The court found that the appellant had delayed for almost three years in filing the application for stay of execution without offering sufficient justification for the delay. The appellant had not demonstrated good faith, as only part of the decretal sum had been paid and no further payments or security had been...
Source-derived case information.
- Citation
- [2018] KEHC 1723 (KLR)
- Parties
- Appellant: Joel Kyalo Mwei; Respondent: Simon Gichoru Muya; Respondent: Wanjiku Wanyeki Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 294 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Delay in Filing, Judicial Discretion, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kyalo Mwei
Appellant
Simon Gichoru Muya
Respondent
Wanjiku Wanyeki Mwangi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated sufficient cause for the grant of stay of execution pending appeal.
- 2 Whether the delay in filing the application for stay is justified.
- 3 Whether the appellant has offered security for the due performance of the decree.
Ratio Decidendi
The court found that the appellant had delayed for almost three years in filing the application for stay of execution without offering sufficient justification for the delay. The appellant had not demonstrated good faith, as only part of the decretal sum had been paid and no further payments or security had been offered. The court emphasized the need to balance the interests of both parties, noting that while the appellant has a right of appeal, the respondents are entitled to enjoy the fruits of their judgment. The absence of any attempt by the appellant to progress the appeal or provide security for the due performance of the decree led the court to conclude that granting the stay would...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 294 OF 2015
JOEL KYALO MWEI..............................................APPELLANT
VERSUS
SIMON GICHORU MUYA.............................1st RESPONDENT
WANJIKU WANYEKI MWANGI................2nd RESPONDENT
RULING
By an application dated 5th June, 2018 the applicant seeks the stay of execution of the judgment of the lower court delivered on 12th June, 2015. This is not the first application of this nature relating to the said decree because there was filed Miscellaneous Application No. 251 of 2015 which was handled by both Justice Onyancha and Justice Mabeya who gave some orders relating thereto.
The reasons for seeking the present order are set out on the face of the application alongside an affidavit sworn by the appellant. There is a replying affidavit sworn by the advocate for the respondent and both parties have filed submissions herein. The order sought is discretionary which discretion has to be exercised judicially. There is evidence that part of the decretal sum amounting to Kshs. 500,000/= has been paid leaving the balance now due.
The application herein was filed almost 3 years after the said decree and no sufficient reason has been offered by the appellant to justify the delay. The court is supposed to balance the interests of the parties in addressing such applications. Although the appellant filed a Memorandum of Appeal on 16th June, 2015 there is no evidence whatsoever, that he has made any attempts to progress the filing of the record of appeal apart from the application now before the court. Whereas he may have the right of appeal, the respondents also have a judgment in their favour which they desire to execute.
In a letter dated 15th June, 2015 written by the appellant’s advocates to the respondent’s advocate, a settlement of this dispute was addressed. It is three years down the line and other than the payment of Kshs. 500,000/= which has been paid, no other payment has been offered or made. Good faith has not been demonstrated and no security has been offered in the present application. The order sought by the appellant may not be granted without resultant injustice on the part of the respondents. I am not persuaded that the appellant is deserving of the order sought. Accordingly, the application is dismissed with costs to the respondents.
Dated, signed and delivered at Nairobi this 20th Day of December, 2018.
A. MBOGHOLI MSAGHA
JUDGE