[2019] KEHC 4996 (KLR)
The court found that the appellant's proposal to provide a bank guarantee for the decretal sum of Kshs.324,048 from a reputable bank was reasonable and appropriate under the circumstances. The court exercised its discretion under Order 42 Rule 6(2) of the Civil Procedure Rules, holding that a bank guarantee would...
Source-derived case information.
- Citation
- [2019] KEHC 4996 (KLR)
- Parties
- Appellant: John Chege; Respondent: Alex Roy Olembo; Respondent: Stephen Owino
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 497 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of provision of bank guarantee.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Chege
Appellant
Alex Roy Olembo
Respondent
Stephen Owino
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the judgment pending appeal.
- 2 What is the appropriate form of security for the due performance of the decree.
Ratio Decidendi
The court found that the appellant's proposal to provide a bank guarantee for the decretal sum of Kshs.324,048 from a reputable bank was reasonable and appropriate under the circumstances. The court exercised its discretion under Order 42 Rule 6(2) of the Civil Procedure Rules, holding that a bank guarantee would sufficiently secure the respondents' interests while allowing the appellant to pursue the appeal without undue hardship. The court rejected the respondents' proposal for a deposit in an interest-earning account, finding the bank guarantee to be an adequate form of security. Consequently, the court granted a stay of execution pending appeal on the condition that the appellant...
Court Disposition
Stay of execution granted on condition of provision of bank guarantee.
Orders
- Stay of execution of the judgment delivered on 18th September, 2018 is granted pending appeal, on condition that the appellant provides a bank guarantee for Kshs.324,048 from a reputable bank within 30 days.
- If the bank guarantee is not provided within 30 days, the order for stay shall lapse.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 497 OF 2018
JOHN CHEGE......................................................APPELLANT/APPLICANT
VERSUS
ALEX ROY OLEMBO......................................................1ST RESPONDENT
STEPHEN OWINO...........................................................2ND RESPONDENT
RULING
1. The appellant/applicant herein has taken out the Notice of Motion dated 9th May, 2019 which supported by grounds set out on the face of the motion and the facts deponed in the affidavit sworn by the applicant. The order being sought is for an order for stay of execution of the judgment delivered on 18th September, 2018 by the Honourable Senior Principal Magistrate E.K. Usui, (Senior Principal Magistrate under Order 42, Rule 6 (2) of the Civil Procedure Rules.
2. The Motion is opposed by the respondents who filed the replying affidavit sworn by the 2nd respondent.
3. At the hearing the parties made oral submissions restricted to the provision of security for the due performance of the decree, which is the sole condition for stay that remained unsettled.
4. Mr. Gichuki, learned advocate for the applicant made a proposition to provide security for the decretal sum of Kshs.324,048/= of a bank guarantee within 21 days. Mr. Osodo, learned advocate holding brief for Mr. Owino, learned counsel for the respondents, stated that the decretal sum be deposited in an interest earning account as opposed to a bank guarantee.
5. I have considered the propositions made by the learned advocates. The record shows that the respondents instituted a suit against the appellant in 2013, seeking to be paid a sum of Kshs.324,048/= for damages occasioned to their motor vehicle registration number KBN 005P as a result of the appellant’s negligent driving of his motor vehicle registration number KAN 487M.
6. The appellant filed his statement of defence and the matter proceeded for hearing. Eventually, the trial court entered judgment in favour of the respondents in the sum of Kshs.324,048/= together with costs and interest thereon.
7. Having established the background of the matter, it is important to state at this juncture that the court has unfettered discretion to determine the most appropriate mode of provision of security for the due performance of the decree to be provided.
8. In this appeal the parties are unable to agree on the nature of the security to be given. Having
9. Having weighed the two proposal I am convinced that the proposal to provide a bank guarantee is reasonable and appropriate.
10. I grant the order for stay of execution pending appeal on condition that the appellant/applicant provides a bank guarantee for the decretal sum of ksh.324,048/= from a reputable bank within 30 days from today, failure to which the order for stay shall lapse. There shall be no order on costs.
Dated, Signed and Delivered at Nairobi this 12th day of July, 2019.
...........................
J. K. SERGON
JUDGE
In the presence of:
……………………………. for the Appellant/Applicant
……………………………. for the 1st and 2nd Respondents