[2006] KEHC 1678 (KLR)
The High Court found that the conditions set by the lower court for granting a stay of execution had not been met. Specifically, the logbook deposited as security was not approved by the court as required, and the vehicle represented by the logbook was a depreciating asset still under the control of the...
Source-derived case information.
- Citation
- [2006] KEHC 1678 (KLR)
- Parties
- Appellant: John Mark Obure; Respondent: Fidelity Security Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 176 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Stay of Execution
- Outcome
- Application allowed with conditions.
- Judges
- CM Kariuki
- Legal Topics
- Stay of Execution, Security for Decree, Supervisory Jurisdiction, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mark Obure
Appellant
Fidelity Security Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Stay of Execution
Legal Issues
- 1 Whether the security deposited by the appellant/respondent in the form of a logbook met the conditions set by the lower court for stay of execution.
- 2 Whether the High Court should set aside or vacate the stay of execution granted by the subordinate court due to non-compliance with its conditions.
- 3 Whether the application to set aside the stay order should have been brought before the lower court or the High Court.
Ratio Decidendi
The High Court found that the conditions set by the lower court for granting a stay of execution had not been met. Specifically, the logbook deposited as security was not approved by the court as required, and the vehicle represented by the logbook was a depreciating asset still under the control of the appellant/respondent, making it unreliable as security. The absence of comprehensive insurance further undermined its sufficiency. The court emphasized that the purpose of requiring court approval was to ensure the security was adequate and to prevent the risk of the security becoming worthless. Consequently, the High Court exercised its supervisory jurisdiction to order that the...
Court Disposition
Application allowed with conditions.
Orders
- The appellant/respondent to deposit either a title deed or the total decretal sum of K.Shs.941,544/- with the court within 14 days from the date of the ruling.
- In default of compliance, the stay order stands vacated and execution to issue.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 176 of 2005
JOHN MARK OBURE…………………….............................................………….…… APPELLANT
VERSUS
FIDELITY SECURITY LIMITED…..................................................……………….. RESPONDENT
R U L I N G
On 10/11/05, the applicant herein moved to this court, under Order 41 rule 4 (1) & (2) of the Civil Procedure Rules seeking orders that:
1. The orders for stay of execution granted by the Subordinate Court, Milimani Commercial Courts, on 2/6/05 be set aside or vacated.
2. Costs to be borne by the Appellant/Respondent
The grounds in support of the application are briefly that the stay orders were on condition that the appellant deposits in court, as security, a title deed or a logbook to be approved by the court, for the due performance of the Decree. The decretal sum as entered on 3/3/05 is K.Shss.941,544/-. The Respondent deposited a logbook for vehicle KAC 700S, upon whose search, the vehicle was found to be a depreciating asset, which was still in use and or control of the Appellant/Respondent, and hence its value will have depreciated by the time the appeal is finalized. The value of the vehicle is much below the ddecretal sum and not a sufficient security. Further, the logbook deposited was subject to court’s approval and that had not been approved by the date of the application herein.
In opposition the Respondent avers that the application is an abuse of the court process; that the issues raised can only be raised before the Lower Court which gave the orders complained of; that conditions which were set by the lower court for the grant of stay order have been fully met, and that no good grounds have been given to warrant interference with the orders of the lower court.
Upon close perusal of the pleadings herein and the submissions by counsel for both sides, I have reached the following findings and conclusions:
The Lower Court’s conditions upon which it granted the stay of execution orders have not been met. Whereas the appellant was given an option of depositing a title deed o a logbook, it the latter option was adopted that was subject to approval of the court. To date there is no evidence of such court approval.
O even greater importance is the fact that such security as was given, even if the court had approved the same, (which was not the case) is a very unreliable security. The vehicle could be, lost, since it is still in the Respondent’s use, though any cause and in the absence of evidence for comprehensive Insurance of the said vehicle, the court and the applicant would be left with an empty shell in the form of a logbook. I believe that is the main reason why the court approval was required to avoid the situation I have stated above.
Accordingly, and in exercise of the supervisory power of this court, I order as under:
(a) (i) the appellant/Respondent to deposit the
Title Deed or
(ii) the appellant do deposit the total ddecretal sum of K.Shs.941,544/- with the court, within the next 14 days from today.
In default, the stay order herein stands vacated and execution to issue.
(b) Courts orders must be obeyed to the letter or this society will be thrown into anarchy and the rule of law will be a mere slogan.
(c ) Appellant/Respondent to bear the costs of this application.
DATED and delivered in Nairobi, this 21st Day of June, 2006.
O.K. MUTUNGI
JUDGE