[2021] KEHC 4515 (KLR)
The court found that the applicants had provided a reasonable explanation for the delay in depositing the security, attributing it to technical hitches rather than deliberate non-compliance. Recognizing the purpose of security as a guarantee for due performance and not as a punitive measure, the court exercised its...
Source-derived case information.
- Citation
- [2021] KEHC 4515 (KLR)
- Parties
- Appellant: Joseph Wamwati Mwangi; Appellant: David Kiuru Maina; Respondent: Stephen Wambua Mulinge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E211 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Stay Orders
- Outcome
- Conditional reinstatement of stay of execution orders pending appeal.
- Judges
- SJ Chitembwe
- Legal Topics
- Stay of Execution, Security for Costs, Reinstatement of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wamwati Mwangi
Appellant
David Kiuru Maina
Appellant
Stephen Wambua Mulinge
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Stay Orders
Legal Issues
- 1 Whether the court should reinstate the lapsed stay of execution orders pending appeal.
- 2 Whether the applicants have provided sufficient justification for the delay in depositing security as ordered by the court.
- 3 What form of security is appropriate to guarantee due performance of the decree.
Ratio Decidendi
The court found that the applicants had provided a reasonable explanation for the delay in depositing the security, attributing it to technical hitches rather than deliberate non-compliance. Recognizing the purpose of security as a guarantee for due performance and not as a punitive measure, the court exercised its discretion to reinstate the stay of execution orders on condition that the applicants provide a bank guarantee for the decretal sum within forty-five days. Failure to comply would result in the vacation of the stay and allow the respondent to execute the decree. The court balanced the interests of both parties by ensuring the respondent's interests were protected while not...
Court Disposition
Conditional reinstatement of stay of execution orders pending appeal.
Orders
- Applicants to issue a bank guarantee in favour of the respondent for Kshs. 200,000 within forty-five (45) days from the date of the ruling.
- In default, the stay of execution pending appeal shall stand vacated and the respondent shall be at liberty to execute.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. E211 OF 2021
JOSEPH WAMWATI MWANGI.....................................................................1ST APPELLANT
DAVID KIURU MAINA.................................................................................2ND APPELLANT
- VERSUS -
STEPHEN WAMBUA MULINGE.......................................................................RESPONDENT
RULING
The Applicants filed a Notice of Motion dated 5th May, 2021 seeking for reinstatement of the orders granted on 20th April, 2021 in their application dated 19th April, 2021 as the temporary orders initially issued had lapsed. That the delay in complying with the court orders requiring them to deposit Kshs. 200,000 in court was due to technical hitches with the judiciary account.
The Application is supported by the affidavit of JANEROSE M. NANJIRA sworn on 5th May, 2021. On 28th June, 2021 when the application came before this court for hearing parties through their counsel, Miss Nanjira and Miss Oseko for the Applicants and Respondent respectively, informed the court that the application was not objected to save for the issue of security.
The purpose of security needed under Order 42 of the Civil Procedure Rules is not to punish the Applicant but is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. This was advanced by Nzioka J. in the case of Badminton Confederation of Africa v Peter Gacheru [2019] eKLR, where the court held that;
“16. It suffices to note the general principle that guides issuance of an order for security for costs is that, “there is a significant risk of the Defendant suffering an injustice by having to defend the proceedings; with no real prospects of being able to recover his costs if he is eventually successful. (See the decision in the case of; Berkeley Administration Inco. & Others vs Maclelland & others. A Plaintiff being a resident abroad is not per se a ground for making an order. (See the case of; Danilina vs Chernukhiri & Others (2018) EWCA 1802, which applied the sliding scale.”
In balancing the interests of the parties and guarantee due performance I direct that the Applicants do issue a bank guarantee in favour of the Respondent for Kshs. 200,000 being the total decretal amount within forty-five (45) days from the date of this ruling. In default the stay of execution pending appeal shall stand vacated and the respondent shall be at liberty to execute. Costs of the application shall abide the outcome of the appeal.
DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2021.
...................................
S. J. CHITEMBWE
JUDGE