[2007] KEHC 2207 (KLR)
The court held that the discretion to grant stay of execution pending appeal is governed by three main conditions: the applicant must establish sufficient cause, demonstrate that substantial loss would result if stay is refused, and provide security for due performance. The court found that the appellants were...
Source-derived case information.
- Citation
- [2007] KEHC 2207 (KLR)
- Parties
- Appellant: Joseph Kigara Wambiru; Appellant: Alice Nduta both trading as Jupiter Electrical and Mechanical Contractors; Respondent: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 92 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of deposit of judgment sum in joint account.
- Judges
- JL Osiemo
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appellate Practice
- 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 Kigara Wambiru
Appellant
Alice Nduta both trading as Jupiter Electrical and Mechanical Contractors
Appellant
National Bank of Kenya
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal under Order XLI Rule 4(2) of the Civil Procedure Rules.
- 2 Whether the appellants have demonstrated that they will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court held that the discretion to grant stay of execution pending appeal is governed by three main conditions: the applicant must establish sufficient cause, demonstrate that substantial loss would result if stay is refused, and provide security for due performance. The court found that the appellants were willing to provide security and had made the application without undue delay. Although the respondent opposed the application, the court was satisfied that the conditions for stay had been met. Accordingly, the court granted a stay of execution of the decree on condition that the appellants deposit the judgment sum in an interest-earning joint account within thirty days, failing...
Court Disposition
Stay of execution granted on condition of deposit of judgment sum in joint account.
Orders
- There shall be a stay of execution of the decree in CMCC NO. EJ 1023 OF 1998 pending determination of the appeal, on condition that the applicant deposits the judgment sum in an interest-earning joint account.
- If the sum is not deposited within thirty days from the date of this order, the respondent is at liberty to execute the decree.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 92 of 2007
JOSEPH KIGARA WAMBIRU….....................................…..1ST APPELLANT
ALICE NDUTA both trading as JUPITER ELECTRICAL
AND MECHANICAL CONTRACTORS..............................2ND APPELLANT
AND
NATIONAL BANK OF KENYA.............................…...……....RESPONDENT
RULING
By this Notice of Motion brought under Order XLI Rule 4 (2) of the Civil procedure Rules and Section 3A of the Civil Procedure Act the Applicants seek orders for stay of execution of the decree and judgment of the subordinate court dated 25th January 2007 pending the hearing and determination of Appeal. The application is based on the grounds that (a) the judgment was entered on 25th January 2007 against the Appellants jointly and severally for a sum of Shs302,000 plus costs and interest at 7% per month; (b) the Appellants being dissatisfied with the entire judgment appealed against the same (c) the Appellants did on the 23rd February 2007 move the subordinate court for orders of stay of execution pending appeal but the application was dismissed with costs (d) the Appellants stand to suffer substantial loss if stay is not granted (e) the application has been brought without undue delay (f) the Appellants are ready and willing to abide with any terms that the court may impose for granting the orders sought.
The application is also supported with an affidavit sworn by Joseph Kigara on 24th April 2007 upon which the Applicant rely entirely. The application is opposed by the Respondent who has filed a replying affidavit sworn by Ian Mgenyi on 27th April 2007 in which it relies entirely.
The application is made under Order XLI Rule 4(2) which reads:-
“(2) No order for stay of execution shall be made unless
(a) the court is satisfied that substantial loss may result to the Applicant unless the order is made and the application has been made without unreasonable delay; and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
This courts discretion is fettered by tree conditions. Firstly the Applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the Applicant must furnish security. And the application must of course be made without unreasonable delay.
The application for stay of execution is made under Order XLI Rule 4 (2) of the Civil procedure Rules 4 (2) of the Civil procedure Rules and this court’s discretion under that order is unfettered. It is wide and while the court will take into account matters like substantial loss the Applicant may suffer unless a stay is granted, provisions of adequate security and expeditious filing of the application, this court is not prevented from granting stay of execution where no substantial loss is established and no security is forthcoming, if it seems just to the court for such order to be made upon application.
Indeed in the NATION NEWSPAPERS LTD VS. MOHINDER SINGH KAMBO CIVIL APPLICATION NO.88 OF 1987, the Court of Appeal found that the Applicant had not demonstrated that it would suffer a substantial or any loss unless execution was stayed. But what the court did in that case was to consider what to be taken into account as I have said herein above.
In this application the Applicant is willing to provide security and the application was made without undue delay. Accordingly, for the reasons I have given above, there shall be a stay of execution of the decree in CMCC NO. EJ 1023 OF 1998 pending the determination of the appeal therefrom on condition that the Applicant deposit the judgment sum in an interest earning Joint Account. If the said sum is not deposited within third days from the date of this order the Respondent to be at liberty to execute the decree. The costs of and incidental to this application shall abide the result of the intended appeal. So I order.
Dated and delivered at Nairobi this 20th day of July 2007.
J.L.A. OSIEMO
JUDGE