[2020] KEHC 1547 (KLR)
The court found that the applicant had demonstrated a likelihood of suffering substantial loss if stay was not granted and that the appeal raised triable issues. The respondent did not rebut the applicant's assertions. The court also noted the applicant's willingness to deposit security for the due performance of...
Source-derived case information.
- Citation
- [2020] KEHC 1547 (KLR)
- Parties
- Appellant: Kenya Tea Packers Company Limited; Respondent: Hezron Getuma t/a Hegeons Auctioneers
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 21 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Abuse of Process, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tea Packers Company Limited
Appellant
Hezron Getuma t/a Hegeons Auctioneers
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court's ruling pending appeal.
- 2 Whether the applicant has demonstrated likelihood of suffering substantial loss if stay is not granted.
- 3 Whether the applicant is willing to provide security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant had demonstrated a likelihood of suffering substantial loss if stay was not granted and that the appeal raised triable issues. The respondent did not rebut the applicant's assertions. The court also noted the applicant's willingness to deposit security for the due performance of the decree. Although the filing of two similar applications was an abuse of process, the court exercised its discretion to determine the applications on their merits in the interest of justice. Consequently, the court allowed the application for stay of execution on condition that the entire decretal sum be deposited in court or in an interest-earning joint account within 30 days.
Court Disposition
application for stay of execution allowed with conditions
Orders
- Stay of execution of the lower court's ruling is granted pending appeal.
- The entire decretal sum shall be deposited in court or in an interest-earning account in the joint names of counsel for the parties within 30 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
CIVIL APPEAL NO. 21 OF 2020
KENYA TEA PACKERS COMPANY LIMITED.....APPELLANT/APPLICANT
VERSUS
HEZRON GETUMA T/A HEGEONS AUCTIONEERS...............RESPONDENT
{Being an Appeal against the Ruling of Hon. MC Nyigei – SRM Nyamira dated and delivered on the 26th day of August 2020 in the original Nyamira Chief Magistrate Misc. App. No. 15 of 2019)
RULING
This ruling relates to the Notices of Motion dated 25th September 2020 and 7th October 2020. Both motions seek a stay of execution of the ruling of the court below delivered on 26th August 2020 in CMCC Misc. Application No. 15 of 2020. Both motions are opposed. The same were canvassed by way of written submissions.
I have carefully considered the applications, the replying affidavit and the rival submissions. It is of course an abuse of the court process to file two applications seeking the same orders, against the same respondent on the same issues – (see Satya Bhama Gadhi v DPP & 3 others [2018] eKLR). I shall however ignore that and proceed to determine the applications on the merits as I am enjoined to do by Articles 159 of the Constitution.
Stay of execution is governed by Order 42 Rule 6 (1) & (2) of the Civil Procedure Rules.The main considerations are whether the applicant is likely to suffer substantial loss should the application be rejected and the appeal succeeds. There is also the consideration of the applicant’s willingness to deposit security.
The applicant seeks to stay execution of the ruling of the court below pending hearing of the appeal preferred against that ruling. The ruling relates to assessment of the auctioneer’s costs in a matter upon which he had been instructed by the respondent. I am satisfied that the appeal filed raises triable issues. As the applicant has prima facie demonstrated that she is likely to suffer substantial loss and this was not rebutted by the respondent, the application has merit. Accordingly, the application is allowed on condition that the entire decretal sum is deposited either in court or in an interest earning account in the joint names of Counsel for the parties within 30 days of this ruling. The costs of the applications shall abide the appeal. It is so ordered.
Signed, dated and delivered in Nyamira this 5th day of November 2020.
E. N. MAINA
JUDGE
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