[2014] KEHC 4483 (KLR)
The court found that the application for stay of execution was made within a reasonable time, as it was filed forty days after the lower court's judgment and after the lapse of the statutory stay period. The applicant demonstrated willingness to provide security and the court was satisfied that failure to grant stay...
Source-derived case information.
- Citation
- [2014] KEHC 4483 (KLR)
- Parties
- Appellant: Joshua Njoroge; Respondent: Mwanasha Hassan Bakari; Respondent: Anne Marie Schyder alias Wirz Anne Marie
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 156 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted on condition of security.
- Judges
- GO Shikwe
- Legal Topics
- Stay of Execution, Security for Appeal, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Njoroge
Appellant
Mwanasha Hassan Bakari
Respondent
Anne Marie Schyder alias Wirz Anne Marie
Respondent
Procedural Posture
Civil Appeal / Ruling on 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 application for stay was made without unreasonable delay.
- 3 Whether the applicant is willing to provide reasonable security as a condition for stay.
Ratio Decidendi
The court found that the application for stay of execution was made within a reasonable time, as it was filed forty days after the lower court's judgment and after the lapse of the statutory stay period. The applicant demonstrated willingness to provide security and the court was satisfied that failure to grant stay would render the appeal nugatory. The court therefore exercised its discretion to grant a stay of execution on the condition that the applicant deposits Ksh. 1 million in an interest earning account in the joint names of counsel for both parties within forty-five days. Costs of the application were ordered to be costs in the intended appeal.
Court Disposition
Application for stay of execution granted on condition of security.
Orders
- Stay of execution of the judgment granted pending hearing and determination of the appeal, on condition that the applicant deposits Ksh. 1 million in an interest earning account in the joint names of counsel for the applicants and the respondents within forty-five days.
- Costs of the application to be costs in the intended appeal.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 156 OF 2012
JOSHUA NJOROGE ….............................................….. 1ST APPELANT
VERSUS
MWANASHA HASSAN BAKARI .......................... 1ST RESPONDENT
ANNE MARIE SCHYDER ALIAS
WIRZ ANNE MARIE ……..................................... 2ND RESPONDENT
RULING
The Notice of Motion application dated the 25th day of September, 2012 and which is expressed to be brought under Section 3 and Section 3A of the Civil Procedure Act, order 42 rules 6, order 51 rules 1 and 3 of the Civil Procedure Rules seeks the following orders:-
A stay of execution of the Judgment obtained herein pending the hearing and determination of the present application.
A stay of execution of the Judgment obtained herein pending the hearing and determination of the applicants appeal against the Judgment delivered on the 15th day of August, 2012.
The grounds are that:-
(a) Judgment was delivered on 15th August, 2012 in favour of the Plaintiff against the Defendant and the thirty (30) days of stay of execution lapsed on 15th September, 2012.
(b) That unless the stay of execution is granted, the applicant is at a risk of execution and the applicants appeal would be rendered nugatory and they would suffer irreparable loss and damage.
(c) That the appeal has high chances of success.
(d) That the Defendant applicant is ready and willing and able to furnish such reasonable security and comply with any Court order that the Court may deem fit.
(e) That the application will not occasion prejudice to the Respondent.
(f) That the application has been done without unreasonable delay.
On the 15th day of August, 2012 Judgment was entered in favour of the plaintiff and against the Defendant on liability.
The plaintiff was to shoulder 30% and the Defendants 70%. Being aggrieved by that decision the Appellants have lodged an appeal.
The application for stay of execution was brought before the Court on 27th September, 2012 some forty (40) days after the lower Courts Judgment.
It cannot be said that there was unreasonable delay.
A memorandum of appeal (which is marked Annexture MK 1) is shown to have been filed on 14th September, 2012.
I am satisfied that if the stay is not granted the applicants appeal would be rendered nugatory. The applicant is wiling to furnish security.
I find that the application has merit and stay of execution is granted pending hearing and determination of the appeal on the condition that the applicants deposit Ksh. 1 million in an interest earning account in the joint names of Counsel for the applicants and the Respondents within forty five (45) days from today.
Costs of this application to be Costs in the intended appeal.
Ruling delivered dated and signed this 18thday of June, 2014.
…....................
M. MUYA
JUDGE
18TH JUNE, 2014
In the presence of:-
Miss Kagumi for the applicants