[2008] KEHC 2423 (KLR)
The court found that the appellant had demonstrated a risk of substantial loss, specifically the threat to his liberty through committal to civil jail, and that no prejudice would be suffered by the respondents if a stay was granted, provided adequate security was furnished. The court was satisfied that the...
Source-derived case information.
- Citation
- [2008] KEHC 2423 (KLR)
- Parties
- Appellant: Joseph Karanja Kang'ara; Respondent: Gladys Wambui Ndegwa; Respondent: Bernard Kiprotich; Respondent: Elizabeth W. Kisili
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 511 of 2006
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Karanja Kang'ara
Appellant
Gladys Wambui Ndegwa
Respondent
Bernard Kiprotich
Respondent
Elizabeth W. Kisili
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order XLI Rule 4 of the Civil Procedure Rules.
- 2 Whether the appellant will suffer substantial loss if stay is not granted.
- 3 Whether the delay in bringing the application is inordinate and unexplained.
Ratio Decidendi
The court found that the appellant had demonstrated a risk of substantial loss, specifically the threat to his liberty through committal to civil jail, and that no prejudice would be suffered by the respondents if a stay was granted, provided adequate security was furnished. The court was satisfied that the interests of justice would be served by granting a conditional stay of execution, requiring the appellant to deposit a specified sum as security and to prosecute the appeal expeditiously. The court also addressed the issue of delay, finding that it was not so inordinate as to defeat the application, particularly as the respondents would be protected by the security ordered....
Court Disposition
Application for stay of execution pending appeal allowed on condition.
Orders
- An order for stay of execution pending appeal shall issue on condition that the appellant shall deposit Kshs.350,000 into an interest earning account with a reputable financial institution in the joint names of the parties' advocates within 30 days.
- The appellant shall file and serve the record of appeal within 90 days from the date hereof and take all necessary action to promptly prosecute the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 511 of 2006
JOSEPH KARANJA KANG’ARA………...…..APPELLANT
VERSUS
GLADYS WAMBUI NDEGWA……..…….1ST RESPONDENT
BERNARD KIPROTICH…………...……..2ND RESPONDENT
ELIZABETH W. KISILI…………………..3RD RESPONDENT
R U L I N G
By a notice of motion dated 12th May, 2008, Joseph Karanja Kangara, the appellant herein seeks an order for stay of execution of the judgment delivered on 30th June, 2006 in CMCC No. 353 of 2003 pending the hearing and determination of his appeal.
The appellant has been served with a notice to show cause as to why he should not be arrested and committed to civil jail in execution of the decree. The appellant maintains that unless the orders for stay of execution is granted he will suffer substantial loss as his liberty is at stake. The appellant has offered to deposit part of the decretal sum in court as security.
The respondent objects to the application maintaining that the appellant has not satisfied the conditions for stay of execution as laid down under Order XLI Rule 4 of the Civil Procedure Rules. In particular that the appellant has not demonstrated that the respondents are persons of straw and substantial loss will be suffered. In this regard, the case of Lalji Bhimji Sanghani Builders & Contractors Vs Nairobi Golf Hotels Kenya Limited HCCC No. 1900 of 1995was relied upon. It is further contended that the application for stay of execution has been brought two years after the appeal was filed and that the inordinate delay has not been explained.
Having considered the application and the contending arguments I am persuaded that no prejudice will be suffered by the respondent if the order for stay of execution is granted provided an appropriate order for security is made.
I therefore make the following orders: -
1. That an order for stay of execution pending appeal shall issue on condition that the appellant shall deposit a sum of Kshs.350,000/= into an interest earning account with a reputable financial institution in the joint names of the parties’ advocates within 30 days from the date hereof.
2. That the appellants shall file and serve the record of appeal within 90 days from the date hereof and take all necessary action to promptly prosecute the appeal.
3. That the order for stay of execution shall lapse 12 months from the date hereof unless otherwise extended by this court.
Orders accordingly.
Dated and delivered this 13th day of June, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Mwaniki for the appellant
Wambua for the 1st respondent