[2011] KEHC 3931 (KLR)
The court found that the delay in bringing the application for stay of execution was sufficiently explained and did not amount to undue delay. There was no evidence provided regarding the respondent's financial means to refund the decretal sum if the appeal succeeded. The court held that, while ordinarily a money...
Source-derived case information.
- Citation
- [2011] KEHC 3931 (KLR)
- Parties
- Appellant: John Kosgei; Appellant: Kipkabus Tea Farm; Respondent: Duncan Kiplagat
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 125 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition.
- Judges
- PM Mwilu
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kosgei
Appellant
Kipkabus Tea Farm
Appellant
Duncan Kiplagat
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution pending appeal.
- 2 Whether the application for stay was brought without undue delay.
- 3 Whether the appellants would suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the delay in bringing the application for stay of execution was sufficiently explained and did not amount to undue delay. There was no evidence provided regarding the respondent's financial means to refund the decretal sum if the appeal succeeded. The court held that, while ordinarily a money decree is not stayed, security for the decretal sum was offered by the appellants. Therefore, the court granted a stay of execution on the condition that the entire decretal sum be deposited into an interest-earning account in the joint names of both counsel for the applicant and respondent within thirty days, failing which execution would proceed. Costs were ordered to abide the...
Court Disposition
Stay of execution granted on condition.
Orders
- There will be a stay of execution upon the terms that the decretal sum be paid into an interest earning account in a financial institution in the joint names of both counsel for the applicant and respondent within thirty (30) days of the date of the delivery of this Ruling.
- In default of compliance, execution will issue.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL APPEAL NO. 125 OF 2009
JOHN KOSGEI
KIPKABUS TEA FARM..................................................................................................APPELLANTS
VERSUS
DUNCAN KIPLAGAT.....................................................................................................RESPONDENT
R U L I N G
This Notice of Motion is taken out under the provisions of Order XLI Rule 4(1), (2) and (6) of the Civil Procedure Rules and section 3 and 3A of the Civil Procedure Rules. It prays that there be a temporary stay or execution or further execution pending the hearing and determination of the appeal. It is grounded on the basis that an appeal has been preferred and if there is execution the appellants/applicants will suffer substantial loss in the event that the appeal succeeds and that the application has been brought without unreasonable delay. The affidavit in support of the application is sworn by counsel for the applicant wherein it is explained that there was a delay of about a month in the handing over of the applicant’s file once there was a change of advocate. Counsel swore further that the applicant would suffer substantial loss if payment was made to the respondent and then the appeal succeeds and the respondent is unable to refund the money. There was an offer to deposit the entire decretal sum into a joint earning account pending the out come of the appeal.
The application was opposed as lacking in merit and having been brought after undue delay and that should the court be minded to allow the stay of execution then it should order that the respondent be paid 50% of the decretal sum forthwith and then proceed with the hearing of the appeal.
Order XLI Rule 4(2) requires that a successful applicant will have shown that he brought the application without undue delay and that he would suffer substantial loss unless the order sought is granted and that such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. The delay here of three months or thereabouts is sufficiently explained and I do not find it undue delay. Save for being mentioned in the replying affidavit there was no proof of the financial means of the respondent. Ordinarily a money decree will not be stayed and payment of the decretal sum may not cause substantial loss but only if the respondent is such in a financial position as to refund the decretal sum or such money as he may have been paid pursuant to the decree should the appeal be successful. Security in the payment of the decretal sum is offered. In the premises I order that there will be stay of execution upon the terms that the decretal sum be paid into an interest earning account in a financial institution in the joint names of both counsel for the applicant and respondent within thirty (30) days of the date of the delivery of this Ruling and in default of which execution would issue. Costs will abide the appeal.
It is so ordered.
DATED AND SIGNED AT ELDORET THIS 31ST DAY OF DECEMBER, 2010.
P.M. MWILU
JUDGE
DELIVERED AND SIGNED AT ELDORET THIS 25TH DAY OF JANUARY, 2011.
F. AZANGALALA
JUDGE
In the presence of;
Advocate for Applicant
Advocate for Respondent
Court Clerk
F. AZANGALALA
JUDGE