[2010] KEHC 3066 (KLR)
The court found that the applicant would suffer substantial loss if the attached Posho Mill was sold before the appeal was heard and determined. However, the court also recognized the need to balance the interests of both parties. Therefore, the court granted a conditional stay of execution, requiring the applicant...
Source-derived case information.
- Citation
- [2010] KEHC 3066 (KLR)
- Parties
- Appellant: Kefa Oseko Orenge; Respondent: Karirana Estate Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 696 of 2009
- Procedural Posture
- Civil Appeal / Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Costs, Attachment of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kefa Oseko Orenge
Appellant
Karirana Estate Ltd
Respondent
Procedural Posture
Civil Appeal / 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 attachment and sale of the applicant's Roller Mill Unit 6FY-35 is proper in the absence of a decree.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicant would suffer substantial loss if the attached Posho Mill was sold before the appeal was heard and determined. However, the court also recognized the need to balance the interests of both parties. Therefore, the court granted a conditional stay of execution, requiring the applicant to deposit Kshs.50,000 as security within 15 days. Upon compliance, the attached Roller Mill Unit 6FY-35 was to be released to the applicant. The court further directed the appellant to file a record of appeal within 90 days and allowed the auctioneer to pursue costs in the lower court. The absence of a decree raised questions about the propriety of the attachment, but the...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- The applicant shall deposit into court a sum of Kshs.50,000 as security within 15 days.
- Upon deposit of Kshs.50,000, the Auctioneer shall forthwith and unconditionally release the applicant’s Roller Mill Unit 6FY-35.
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 696 of 2009
KEFA OSEKO ORENGE………………………………APPELLANT
VERSUS
KARIRANA ESTATE LTD………………….……….RESPONDENT
R U L I N G
1. By an amended notice of motion dated 17th December, 2009, Kefa Oseko Orenge, (hereinafter referred to as the applicant), seeks an order for stay of execution of the judgment in Limuru SPMCC No.10 of 2006 pending the hearing of his appeal. The applicant also seeks an order for release of his Roller Mill Unit 6FY-35 which has been attached by Mararo Auctioneers.
2. I have given due consideration to the applicant’s motion. I have also considered the submissions which were made before me by counsels. It is evident that the applicant is aggrieved by the ruling of the lower court dismissing his suit. The applicant has lodged an appeal in this court against that dismissal. It is also not disputed that the respondent has through an auctioneer attached the applicant’s Posho Mill and that the attachment is in respect of costs following the dismissal of the applicant’s suit. No copy of any decree has been availed to this court and it is evident that there is an issue regarding the propriety of that attachment.
3. I have no doubt that the applicant will suffer substantial loss if the Posho Mill is sold. However, I have the duty to take into account the interests of both parties. For that reason, I will grant an order for stay of execution pending appeal on the following conditions:
(i)The applicant shall deposit into this court a sum of Kshs.50,000/= as security within 15 days from today.
(ii)That upon deposit of the sum of Kshs.50,000/= into court, the Auctioneer shall forthwith and unconditionally release the applicant’s Roller Mill Unit 6FY-35.
(iii)That the appellant shall file a record of appeal within 90 days and take all necessary action to facilitate the speedy disposal of the appeal.
(iv)The Auctioneer is at liberty to pursue the issue of his costs in the lower court.
Orders accordingly.
Dated and delivered this 11th day of March, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Omao H/B for Omosa for the appellant
Ms Serem for the respondent
Eric - Court clerk