[2014] KEHC 7041 (KLR)
The High Court found that the trial magistrate failed to demonstrate consideration of the principles for granting stay of execution, particularly the requirement for security under Order 42 Rule 6 of the Civil Procedure Rules. The court held that while a stay of execution pending appeal was justified, it should have...
Source-derived case information.
- Citation
- [2014] KEHC 7041 (KLR)
- Parties
- Appellant: Joseph Gitari Wamburi; Respondent: General Motor Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 161 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Setting Aside Stay of Execution Order
- Outcome
- Conditional stay of execution granted; appellant to deposit decretal sum within 30 days or stay lapses.
- Judges
- DA Onyancha
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gitari Wamburi
Appellant
General Motor Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Setting Aside Stay of Execution Order
Legal Issues
- 1 Whether the trial magistrate properly exercised discretion in granting an unconditional stay of execution pending appeal.
- 2 Whether security for the decretal sum should have been ordered as a condition for stay of execution.
Ratio Decidendi
The High Court found that the trial magistrate failed to demonstrate consideration of the principles for granting stay of execution, particularly the requirement for security under Order 42 Rule 6 of the Civil Procedure Rules. The court held that while a stay of execution pending appeal was justified, it should have been conditional upon the appellant depositing the decretal sum in a joint interest-earning account. The absence of reasons in the lower court's ruling and failure to address the issue of security rendered the unconditional stay improper. The High Court therefore ordered that the stay would continue only if the appellant deposited the decretal sum within 30 days, failing which...
Court Disposition
Conditional stay of execution granted; appellant to deposit decretal sum within 30 days or stay lapses.
Orders
- Appellant to deposit Ksh.561,865/- in a joint interest-earning account operated by counsel within 30 days.
- In default of deposit, the order of stay shall automatically stand discharged.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 161 OF 2010
JOSEPH GITARI WAMBURI. ........... RESPONDENT/APPELLANT
VERSUS
GENERAL MOTOR LIMITED............ APPLICANT/RESPONDENT
R U L I N G
The application before the court is the Notice of Motion by the Respondent’s in this appeal. The application is dated 1st August and seeks mainly the following orders: -
That the order by the trial magistrate granting the Appellant an unconditional stay pending the final determination of the appeal, be set aside.
That in the alternative to a) above, the Appellant be ordered to deposit the decretal sum in a joint interest-earning account as may be directed.
The application is based on the grounds that the stay order should not have been granted without proper exercise of the discretion exercisable in such cases.
The Respondent, during the hearing of the application, argued that the lower court failed to consider the principles of granting stay. That he failed to consider the need for security from the Appellant and failed to consider whether or not the Appellant would suffer any substantial loss if the order of stay was not granted.
I have examined the ruling of the lower court which granted the stay. It is very brief. It states as follows:-
“I have considered the 2nd Defendant’s Notice of Motion application dated 11th May, 2010 and the able submissions by learned counsel for the parties. The application seeks stay of execution pending appeal. The same is allowed as drawn. M K Kiema.”
Clearly, the trial court does not show he considered the principles or terms for granting a stay of execution. The Honourable trial magistrate does not show what issues he took into account and whether or not he considered, particularly the issue of security required to be taken into account under order 42 rule 6 of the Civil Procedure Rules. On that point this court agrees with the view expressed by the Respondent.
On the second point assuming that the trial court considered the issue of substantial loss, this court is of the view that a more balanced approach should have included security.
The conclusion that the court reaches is accordingly as follows: that the Appellant should have stay of execution pending the determination of appeal but he must also deposit in the bank in a saving, interest earning joint counsel operated account, the decretal sum of Ksh.561,865/-, within 30 days. In default of which, the order of stay on record shall automatically stand discharged. Orders accordingly.
Dated and delivered at Nairobi this 19th day of February 2014.
.................................................
D A ONYANCHA
JUDGE