[2004] KEHC 969 (KLR)
The court found that the applicant would suffer substantial loss if his motor vehicle was sold before the appeal was heard and determined. There was no unreasonable delay in bringing the application. Although the applicant had not complied with the lower court's order to deposit the decretal sum, this omission was...
Source-derived case information.
- Citation
- [2004] KEHC 969 (KLR)
- Parties
- Applicant: Joseph Kenyatti; Applicant: Francis Kamande; Respondent: Dedan Njenga Njoroge
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 178 of 2004
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of provision of bank guarantee; costs to applicant.
- Legal Topics
- Stay of Execution, Security for Judgment, Substantial Loss, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kenyatti
Applicant
Francis Kamande
Applicant
Dedan Njenga Njoroge
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the applicant has provided adequate security as required by law.
- 3 Whether the applicant will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant would suffer substantial loss if his motor vehicle was sold before the appeal was heard and determined. There was no unreasonable delay in bringing the application. Although the applicant had not complied with the lower court's order to deposit the decretal sum, this omission was not fatal to the application. The court held that security should be provided in a form that is least disadvantageous to the applicant, and that a bank guarantee would suffice. The court exercised its discretion to grant a stay of execution, varying the lower court's condition and requiring the applicant to provide a bank guarantee for the decretal sum within 21 days, failing...
Court Disposition
Stay of execution granted on condition of provision of bank guarantee; costs to applicant.
Orders
- Stay of execution of the judgment in CMCC No. 1144 of 1998 is granted.
- The applicant shall provide a bank guarantee in the sum of Kshs. 250,000 within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 178 OF 2004
JOSEPH KENYATTI…………………………………………………1ST APPLICANT
FRANCIS KAMANDE…………………………………………..……2ND
APPLICANT
VERSUS
DEDAN NJENGA NJOROGE………………………………………RESPONDENT
RULING
This is an application for stay of execution of the judgment in CMCC No. 1144 of 1998 pending the hearing and determination of an appeal.
The applicant was ordered to deposit the decretal sum in court within 30 days from 30/8/2004 but has been unable to do so.
In his affidavit sworn in support of the application he stated that he was ready to deposit the log book of his motor vehicle KAQ 837A Toyota Van which had been proclaimed by auctioneers. He said the motor vehicle belonged to him although it had not been transferred formally. Mr. Mugambi for the applicant submitted that the applicant would suffer substantial loss if the application was not allowed as his motor vehicle aforesaid would be sold in execution of the judgment.
The respondents opposed the application saying that the applicant had not complied with the order given by the lower court requiring him to deposit the decretal sum in court. They also said that the proposal to deposit the logbook in court was not acceptable because the same was not in the applicant’s name.
Mr. Ndubi for the respondent submitted that security could only be in form of money. He further submitted that the appeal could not be rendered nugatory by denial of the orders sought.
Under Order XLI Rule 4, an applicant for stay of execution pending an appeal has to satisfy the court that he stands to suffer substantial loss unless the order is made and that the application has been made without unreasonable delay. The applicant should also provide such security as the court may order.
It is not in dispute that the applicant will suffer substantial loss if its motor vehicle is sold in execution of the judgment before his appeal is heard and determined. There was also no contention that there was unreasonable delay in filing the present application.
The respondent’s main argument is that the applicant did not come to this court with clean hands, having failed to comply with the order issued by the trial court requiring him to deposit the decretal amount in court within a given period of time, which has now expired.
The above cited provision of the law provides that whether the application for stay has been granted or refused by the court appealed from, the appellate court is at liberty on application made, to consider a subsequent application for stay and make such orders as may to it seem just. Also, the applicant or any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. The applicant herein has made a second application for stay of execution after the trial court issued a conditional order of stay. He has been aggrieved by the condition imposed by the trial court but has not applied to this court to set aside the said order. In my view, this is not a fatal omission although it would have been desirable to include in his application a prayer to have the order of the trial court set aside.
The applicant has an arguable appeal and in my view it would be in the interest of justice to grant him an opportunity to pursue his appeal while he retains his motor vehicle and other properties. He should however provide security.
In ROSENGRENS LTD VS SAFE DEPOSIT CENTRES LTD [1984] 3 ALL ER 198 it was stated that security should be given in a way which is least disadvantageous to the party giving that security.
“It may take many forms. Bank guarantee and payment into court are
but two of them …..so long as it is adequate, then the form of it is a
matter which is immaterial.”
The Court of Appeal took the same position in GITAHI & ANOTHER VS WARUGONGO [1988] K.L.R. 621.
I hereby grant stay of execution of the judgment in CMCC No. 1144 of 1998 and vary the condition which had been imposed by the trial court but instead order that the applicant do provide a bank guarantee in the sum of Kshs.250,000/- within the next twenty one (21) days from the date hereof failing which the conditional order of stay granted herein will lapse and the respondents will be at liberty to execute.
The applicant will meet the costs of this application.
DATED, SIGNED & DELIVERED at Nakuru on this 21st day of October, 2004.
DANIEL MUSINGA
AG. JUDGE