[2014] KEHC 6086 (KLR)
The court found that the loss of a house for the sum in question would amount to irreparable harm to the applicant. However, the court also recognized the respondent's right to enjoy the fruits of her judgment. Balancing these interests, the court held that the application for stay of execution was meritorious, but...
Source-derived case information.
- Citation
- [2014] KEHC 6086 (KLR)
- Parties
- Appellant: Khamis Bakari Mwariaile; Respondent: Asha Hamisi Zani
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 14 of 2013
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted conditionally.
- Judges
- JV Juma
- Legal Topics
- Stay of Execution, Injunctions, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Khamis Bakari Mwariaile
Appellant
Asha Hamisi Zani
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant has demonstrated irreparable harm if the stay is not granted.
- 3 Whether the balance of convenience favours granting the stay.
Ratio Decidendi
The court found that the loss of a house for the sum in question would amount to irreparable harm to the applicant. However, the court also recognized the respondent's right to enjoy the fruits of her judgment. Balancing these interests, the court held that the application for stay of execution was meritorious, but made the stay conditional upon the applicant depositing the decretal sum in court within thirty days. Failure to comply would result in immediate execution of the judgment.
Court Disposition
Application for stay of execution granted conditionally.
Orders
- Stay of execution granted pending hearing and determination of the appeal, subject to the applicant depositing Kshs. 150,000 in court within thirty days.
- Failure to deposit the sum within the specified time will lead to immediate execution of the judgment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 14 OF 2013
KHAMIS BAKARI MWARIALE.…………….……………...APPELLANT
VERSUS
ASHA HAMISI ZANI …..…………….……………….……RESPONDENT
RULING
Before court is the Notice of Motion dated 7th May, 2013 which was filed under certificate of urgency. The applicant/appellant sought inter alia orders
“That there be a stay of execution pending the hearing and determination of the appeal.”
The application arises from the judgment of the Senior Kadhi in Kadhi’s case No. 203 of 2011 in which the Kadhi entered judgment in favour of the applicant in the sum of Kshs. 150,000/=. The respondent has moved to execute the said judgment through the sale of the defendant’s house. The applicant has already filed an appeal against the decision of the Kadhi and is seeking a stay of execution pending the hearing and determination of his appeal.
The application which was opposed was disposed of by way written submissions. I have carefully considered the submissions of both parties on record. I am mindful of the conditions guiding grant of injunction as set out in the case of GIELLA – VS – CASSMAN BROWN (1973) E.A. 358 which are
An applicant must show a prima facie case with a probability of success.
An applicant must prove that he stands to suffer live parable harm if the injunction sought is not granted.
Where the court is in any doubt the balance of probability must prevail.
I have no doubt that the loss of a house for a sum of Kshs. 218,000/= does amount to irreparable harm. However, the court must balance this as against the rights of the respondent to enjoy the fruits of his judgment. It is my considered view that the present application is meritous. I therefore do grant a stay pending the hearing and determination of appeal SUBJECT TO the applicant depositing in court the decretal sum of Kshs. 150,000/= within thirty (30) days of today’s date. Failure to deposit this sum in the time specified will lead to the immediate execution of the judgment. It is so ordered. Costs in the cause.
Dated and delivered in Mombasa this 31st day of March, 2014.
M. ODERO
JUDGE
In the presence of:
Ms. Mwatu h/b Respondent