[2015] KEHC 6090 (KLR)
The court found that the application for stay of execution pending appeal was brought without unreasonable delay and that the appellant was likely to suffer substantial loss if the stay was not granted. The court further held that the interests of justice required the grant of stay, provided that the applicant...
Source-derived case information.
- Citation
- [2015] KEHC 6090 (KLR)
- Parties
- Appellant: Kenya Eclof Company Limited; Respondent: Patrick Kalabayi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Stay of execution granted pending appeal, subject to deposit of security.
- Judges
- A Ali-Aroni
- Legal Topics
- Stay of Execution, Appeal Procedure, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Eclof Company Limited
Appellant
Patrick Kalabayi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the application was made without unreasonable delay.
- 3 Whether the applicant is likely to suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution pending appeal was brought without unreasonable delay and that the appellant was likely to suffer substantial loss if the stay was not granted. The court further held that the interests of justice required the grant of stay, provided that the applicant deposited Kshs.250,000 in an interest-earning account in the names of both counsels within 10 days as security for the due performance of the decree. The court exercised its discretion under Order 42 Rule 6(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to grant the stay, with costs to abide the outcome of the appeal.
Court Disposition
Stay of execution granted pending appeal, subject to deposit of security.
Orders
- There be a stay of execution pending hearing and determination of the appeal subject to the applicant depositing the sum of Kshs.250,000 in an interest earning account in the names of the two counsels on record for the applicant and respondent within the next 10 days.
- Costs abide the outcome of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO.53 OF 2014
KENYA ECLOF COMPANY LIMITED.........................................APPELLANT
VRS
PATRICK KALABAYI................................................................RESPONDENT
RULING
1. Before court is an application by way of Notice of Motion brought under section 3A & 63 (E) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Notice of Motion is dated the 21st day of July 2014 and supported by the affidavit of one Philemon Misoi.
2. The orders sought were to have the send application certified urgent, a temporary stay of execution pending determination of the same and a stay of execution of the decree and judgment of the Principal Magistrate, Bungoma in CMCC No.578 of 2010, pending hearing and determination of the appeal herein and costs. Prayers a & b are spent, for the court's determination is prayer ( c ) and (d).
3. The Respondent opposed the application and filed grounds of opposition dated 28th July, 2014 and a Replying Affidavit dated the same day signed by the Respondent Patrick Kalabayi.It is the Respondent's case that the Applicant does not meet the required thresh-hold necessary for granting of a stay pending appeal, the application is scandalous, frivolous and lacks merit. He submitted further that there was due service of the plaint though no appearance nor a defence was filed.
4. Order 42 rule 6 (2) provides:-
“(2) No order for stay of execution shall be made under sub-rule (1) unless;
a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
5. Having considered the pleadings and submissions onrecord, I am of the view that in the circumstances of this case, the application was brought to court timeously and the Appellant is likely to suffer substantial loss. I therefore order:-
i) That there be a stay of execution pending hearing and determination of the appeal subject to the applicant depositing the sum of Kshs.250,000/= in an interest earning account in the names of the two counsels onrecord for the applicant and respondent within the next 10 days.
ii) Costs abide the outcome of the appeal.
Dated and delivered at Bungoma this 17th day of February, 2015.
ALI- ARONI
JUDGE