[2010] KEHC 3112 (KLR)
The court found that the applicants had demonstrated substantial loss may result if the decretal sum is paid to the minor respondent, who has no independent means to refund the amount should the appeal succeed. The court was satisfied that the ends of justice would be best served by granting a conditional stay of...
Source-derived case information.
- Citation
- [2010] KEHC 3112 (KLR)
- Parties
- Applicant: Josephat Nyingi Peter; Applicant: James Nyingi Matolo; Respondent: W.K.N (a minor suing through his father and next friend H.N.N)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 2010
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Nyingi Peter
Applicant
James Nyingi Matolo
Applicant
W.K.N (a minor suing through his father and next friend H.N.N)
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for stay of execution pending appeal.
- 2 Whether the minor respondent's inability to refund the decretal sum constitutes substantial loss to the applicants.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicants had demonstrated substantial loss may result if the decretal sum is paid to the minor respondent, who has no independent means to refund the amount should the appeal succeed. The court was satisfied that the ends of justice would be best served by granting a conditional stay of execution. The stay was made subject to the sum of Kshs.150,000 already deposited in court being placed in an interest-earning joint account in the names of the parties' advocates, and the applicants filing and serving the record of appeal within 90 days. The court further directed that the appeal be disposed of within 12 months, failing which the stay would lapse unless extended...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Stay of execution of the decree in Thika CMCC No.559 of 2007 pending hearing and determination of the appeal, subject to conditions.
- The sum of Kshs.150,000 deposited in court to be released to the parties' counsel and deposited in an interest-earning joint account within 15 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 32 of 2010
JOSEPHAT NYINGI PETER……………………....1ST APPLICANT
JAMES NYINGI MATOLO………………………..2ND APPLICANT
VERSUS
W.K.N (A minor suing thro his father
and next friend H.N.N)……………….……………RESPONDENT
R U L I N G
1. By a notice of motion dated17th February, 2010, Josephat Nyingi Peter and James Nyingi Matolo (hereinafter referred to as the applicants), seek an order of stay of execution of the decree pending the hearing and determination of their appeal. The applicants have not stated in their motion which decree they seek to stay. However, from the supporting affidavit sworn by Josephat Nyingi Peter it is apparent that the decree sought to be stayed is the one arising from the judgment delivered on15th January, 2010in Thika CMCC No.559 of 2007. That judgment is the subject of the applicants’ appeal filed in this court. Following interim orders issued by Rawal J. of17th February, 2010, the applicants deposited a sum of Kshs.150,000/= in this court as security for the due performance of the decree.
2. The applicants’ main ground is that they have filed an appeal which raises arguable issues and which appeal they believe has high chances of success. The applicants contend that unless an order for stay of execution is granted they will suffer substantial loss as the decree holder is a minor who has no means of refunding the decretal amount should the applicants be successful in their appeal.
3. The application is opposed through a replying affidavit sworn by H.N.N who is the father and next friend of W.K.N (hereinafter referred to as the respondent). The respondent contends that the applicants will not suffer any loss, as the money subject of the decree will be invested for the minor. The respondent maintains that the application is nothing other than an attempt to delay the respondent from reaping the fruit of their litigation. Several authorities were referred to in support and in opposition to the application.
4. Having given due consideration to this application, I find that the applicants’ contention that the decree holder is a minor is not disputed. Secondly, it is apparent that the decree holder has no resources of his own and therefore refunding the decretal sum if paid to him may be a challenge. I am satisfied that in the circumstances of this case, the ends of justice would be best satisfied by granting a conditional order of stay of execution. Accordingly, I issue an order staying the execution of the decree in Thika CMCC No.559 of 2007 pending the hearing and determination of the appeal filed herein, on the following conditions:
(i) That the sum of Kshs.150,000/= deposited in court by the applicants shall be released to the parties’ counsel to be deposited into an interest earning account with a reputable financial institution in the joint names of the parties’ advocates within 15 days from the date of release of the money.
(ii) The applicants shall file and serve a record of appeal within 90 days from the date hereof.
(iii) The applicants shall take all necessary action to facilitate the speedy disposal of this appeal. In the event that the appeal is not disposed off within 12 months from the date hereof, the order for stay of execution pending appeal shall stand discharged unless otherwise extended by the court.
(iv) Costs of this application shall be costs in the appeal.
Dated and delivered this 7th day of May, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Mungla H/B for Ngugi for the applicants
Kinyanjui for the respondent
Eric - Court clerk