[2002] KEHC 1243 (KLR)
The court found that the appeal was arguable and that the appellant would suffer substantial loss if a stay was not granted, given the nature of the money decree and the difficulty of recovery from the respondent if the appeal succeeded. The court therefore granted a conditional stay of execution, requiring the...
Source-derived case information.
- Citation
- [2002] KEHC 1243 (KLR)
- Parties
- Appellant: Joseph Gikonyo T/A Garam Investments; Respondent: George Gaiti T/A Urafiki Tours & Safaris
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Application 717 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition of deposit of decretal sum.
- Legal Topics
- Stay of Execution, Money Decree, Security for Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gikonyo T/A Garam Investments
Appellant
George Gaiti T/A Urafiki Tours & Safaris
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 pending appeal.
- 2 Whether the appellant will suffer substantial loss if the stay is not granted.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the appeal was arguable and that the appellant would suffer substantial loss if a stay was not granted, given the nature of the money decree and the difficulty of recovery from the respondent if the appeal succeeded. The court therefore granted a conditional stay of execution, requiring the appellant to deposit the full decretal sum in an interest-earning account in the joint names of counsel for both parties within 14 days. Failure to comply would result in the lapse of the stay and allow the respondent to execute the decree.
Court Disposition
Application for stay of execution allowed on condition of deposit of decretal sum.
Orders
- The application for stay of execution is allowed on condition that the full decretal sum is deposited in an interest earning account at a reputable financing institution in joint names of counsel for both parties within 14 days.
- If the appellant fails to avail the decretal sum for deposit within the given period, this order shall lapse and the respondent shall be at liberty to execute.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIV APP 717 OF 2001
JOSEPH GIKONYO
T/A GARAM INVESTMENTS ……………………………APPELLANT
VERSUS
GEORGE GAITI
T/A URAFIKI TOURS & SAFARIS ……………………RESPONDENT
RULING
After hearing and recording submissions of counsel for the parties herein, I cannot say the appeal is not arguable or that if the application is not granted the appellant shall not suffer substantial loss given that this is a money decree and that to recover it from a rural folk if the appeal succeeds. Is an-uphill task.
I allow this application on condition that the full decretal sum is deposited in an interest earning account at a reputable financing institution in joint names of counsel for both parties within 14 days from today and if the appellant fails to avail the said decretal sum for deposit within the given period, this order to lapse and the respondent to be at liberty to execute.
Costs of this application to the respondent in any event.
Delivered this 11th day of April, 2002.
D.K.S. AGANYANYA
JUDGE