[2008] KEHC 2454 (KLR)
The court found that the appellant, Kenpoly Manufacturers Limited, is not the judgment-debtor but an objector whose objection to attachment was dismissed by the lower court. The court held that unless a stay of execution is granted, the appellant would suffer substantial loss by being compelled to satisfy a decree...
Source-derived case information.
- Citation
- [2008] KEHC 2454 (KLR)
- Parties
- Appellant: Kenpoly Manufacturers Limited; Respondent: Crispinus I. Imbelesia; Respondent: Kenpoly 'M' Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 468 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Objector Proceedings, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenpoly Manufacturers Limited
Appellant
Crispinus I. Imbelesia
Respondent
Kenpoly 'M' Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant, as an objector and not the judgment-debtor, is entitled to a stay of execution pending appeal.
- 2 Whether substantial loss would be occasioned to the appellant if stay is not granted.
- 3 Whether the decretal sum should remain deposited in court as security pending appeal.
Ratio Decidendi
The court found that the appellant, Kenpoly Manufacturers Limited, is not the judgment-debtor but an objector whose objection to attachment was dismissed by the lower court. The court held that unless a stay of execution is granted, the appellant would suffer substantial loss by being compelled to satisfy a decree for which it is not liable. The court also considered the risk that, should the appeal succeed, recovery of the decretal sum from the 1st respondent would be difficult due to his limited means. The court noted that the decretal sum had already been deposited in court as security, satisfying the requirement for security for the due performance of the decree. The court therefore...
Court Disposition
application for stay of execution allowed
Orders
- Stay of execution of the decree of the lower court pending disposal of the appeal.
- The decretal sum deposited in court on 8th June, 2007 shall remain so deposited pending disposal of the appeal or further order of the court.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 468 of 2007
KENPOLY MANUFACTURERS LIMITED ………..…. APPELLANT
V E R S U S
CRISPINUS I. IMBELESIA.............................1ST RESPONDEBT
KENPOLY ‘M’ LIMITED ................................2ND RESPONDENT
R U L I N G
The Appellant herein is not the judgement-debtor in the lower court. It was an objector to attachment in execution of decree whose objection was dismissed by the lower court. The appeal is against that dismissal.
The appeal was lodged timeously and there was no unreasonable delay in bringing this application. Although the Respondent claims that the Appellant, KENPOLY MANUFACTURERS LIMITED, and the judgment-debtor, KENPOLY ‘M’ LIMITED, are one and the same person, they are different corporations on the face of the record. We are all aware of the legal ramifications of incorporation.
I am satisfied that the Appellant stands to suffer substantial loss unless the order of stay it has sought by notice of motion dated 4th June, 2007 is not granted pending disposal of its appeal. It shall thereby have been forced to meet the decree of the lower court when it is not the judgment-debtor. Should its appeal succeed it may have considerable difficulty in recovering the decretal sum as the 1st Respondent appears to be a man of meager means. On the other hand, should the appeal be ultimately dismissed, the decretal sum will be readily available to the 1st Respondent as the same was deposited in court on 8th June, 2007 as security upon the order of this court.
Having considered all matters placed before the court, I will allow the application by notice of motion dated 4th June, 2007. There shall be stay of execution of decree of the lower court pending disposal of the appeal herein. The decretal sum deposited in court on 8th June, 2007 shall remain so deposited pending disposal of the appeal or the further order of the court. Costs of the application shall be in the cause. Those shall be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF JUNE 2008.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 20TH DAY OF JUNE 2008