[2008] KEHC 2985 (KLR)
The court found that the appellant's concerns regarding the respondent's ability to refund the decretal sum if the appeal succeeded were justified. In the absence of opposition and considering the interests of both parties, the court determined that the appropriate course was to order the entire decretal amount to...
Source-derived case information.
- Citation
- [2008] KEHC 2985 (KLR)
- Parties
- Appellant: Kenya Tea Development Agency; Respondent: Robert Obare Moseti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 164 of 2004
- Procedural Posture
- Civil Appeal / Interlocutory Application for Variation of Stay Orders Pending Appeal
- Outcome
- Application allowed in part.
- Judges
- DK Musinga
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tea Development Agency
Appellant
Robert Obare Moseti
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Variation of Stay Orders Pending Appeal
Legal Issues
- 1 Whether the conditional stay of execution requiring payment of half the decretal sum to the respondent should be varied.
- 2 Whether the entire decretal amount should be deposited in a joint interest earning account pending appeal.
Ratio Decidendi
The court found that the appellant's concerns regarding the respondent's ability to refund the decretal sum if the appeal succeeded were justified. In the absence of opposition and considering the interests of both parties, the court determined that the appropriate course was to order the entire decretal amount to be deposited in an interest earning account in the joint names of the advocates for both parties. This measure would secure the appellant's interests while ensuring that the respondent would have access to the funds should the appeal fail. The court also noted the lack of diligence by both parties in prosecuting the appeal and directed that the appeal be set down for hearing...
Court Disposition
Application allowed in part.
Orders
- The decretal amount shall be deposited in an interest earning account in the joint names of the advocates for the parties within thirty (30) days from the date hereof.
- The appeal shall be set down for hearing within three (3) months from the date hereof, failing which it will be dismissed for want of prosecution.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Appeal 164 of 2004
KENYA TEA DEVELOPMENT AGENCY ………… APPELLANT
VERSUS
ROBERT OBARE MOSETI ………………………. RESPONDENT
RULING
The appellant filed an application by way of a notice of motion brought under Order XL1 rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
The application seeks primarily the order that:
“The honourable court be pleased to vary the orders of stay requiring the appellant to release part of the decretal sums to the Respondent and substitute it with an order that the stay of execution is allowed unconditionally, or that the wholedecretal amount be deposited in an interest earning account in the joint names of the advocates of the parties, pending the determination of the appeal.”
The application was supported by an affidavit sworn by one Eric Ngeno, an advocate who was then acting for the appellant. The background leading to the application is that in CMCC.NO.675 of 2003 at Kisii, the respondent herein was the plaintiff and judgment was entered in his favour against the appellant in the sum of Kshs.70, 000/= plus costs and interest. The appellant was aggrieved by the judgment and preferred an appeal to this court.
The subordinate court granted conditional stay of execution pending appeal subject to half the decretal amount being paid to the respondent. It was contended that the respondent is a man of straw and may not refund the decretal sum or any part that may be paid to him in the event the appeal is successful.
When the application first came up for hearing on 10th November, 2004, temporary stay of execution of the lower court’s order was granted pending inter partes hearing of the same.
The application came up for hearing on 11th March, 2008. The same was not opposed. I have perused the application and I think the appellant’s fears are well founded. I am of the view that the decretal amount should be deposited in an interest earning account in the joint names of the advocates for the parties herein, pending hearing and determination of the appeal. That should be done within the next thirty (30) days from the date hereof.
Having ordered as above, I must observe that none of the parties have demonstrated any keen interest in expeditious disposal of this simple appeal. Since 22nd June, 2005 when the present application was stood over generally, no action was taken until 14th August 2007 when the appellant’s advocate fixed the appeal for directions with a view to getting a hearing date for the application dated 8th November, 2004. In the circumstances, I now direct that the appeal be set down for hearing within the next three (3) months from the date hereof failing which the court will proceed to dismiss it for want of prosecution. I make no orders as to costs of the application.
DATED, SIGNED and DELIVERED at Kisii this 9th day of April, 2008.
D. MUSINGA
JUDGE.
Delivered in open court of the presence:
Mr. Ochwangi holding brief for Mr. Nyachiro for the appellant.
N/A for the respondent.
D. MUSINGA
JUDGE