[2011] KEHC 647 (KLR)
The court found that the appellant had demonstrated an arguable appeal and that, to avoid rendering the appeal nugatory, a stay of execution should be granted. However, the stay was made conditional upon the appellant depositing Kshs.90,000 into a joint interest-earning account in the names of both parties'...
Source-derived case information.
- Citation
- [2011] KEHC 647 (KLR)
- Parties
- Appellant: Kilindini Ware House Limited; Respondent: Lazaro Mwachia Danson
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 37 of 2011
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of deposit of Kshs.90,000 within seven days; otherwise, stay is set aside and execution may proceed.
- Legal Topics
- Stay of Execution, Appeals Process, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kilindini Ware House Limited
Appellant
Lazaro Mwachia Danson
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the decree pending the hearing and determination of the appeal.
- 2 Whether the appellant has demonstrated that the appeal is arguable and that failure to grant stay would render the appeal nugatory.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the appellant had demonstrated an arguable appeal and that, to avoid rendering the appeal nugatory, a stay of execution should be granted. However, the stay was made conditional upon the appellant depositing Kshs.90,000 into a joint interest-earning account in the names of both parties' advocates within seven days. Failure to comply with this condition would result in the automatic setting aside of the stay and allow execution to proceed. The court exercised its discretion under Order 42 Rule 6 of the Civil Procedure Rules, balancing the interests of both parties and ensuring security for the due performance of the decree.
Court Disposition
Stay of execution granted on condition of deposit of Kshs.90,000 within seven days; otherwise, stay is set aside and execution may proceed.
Orders
- A stay of execution of the decree in SRMCC No. 3737 of 2005 is granted pending hearing and determination of the appeal, subject to the appellant depositing Kshs.90,000 into a joint interest-earning account in the names of both advocates within seven days.
- Failure to deposit the sum within seven days will result in the stay being automatically set aside and execution may proceed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 37 OF 2011
(Arising from Civil Case No. 3737 of 2005 of the Senior Resident Magistrate’s Court
at Mombasa: T. Ole Tanchu – S.R.M.)
KILINDINI WARE HOUSE LIMITED.................................................................................APPELLANT
=VERSUS=
LAZARO MWACHIA DANSON....................................................................................RESPONDENT
RULING
Before court is the Notice of Motion dated 20th April 2011 in which the Appellant seeks inter alia the following orders:
“THAT pending the hearing and determination of the appeal filed herein there be a stay of execution of the decree of Honourable T. Ole Tanchu Senior Resident Magistrate Mombasa in Senior Resident Magistrate’s Civil Case No. 3737 of 2005 Lazaro Mwachia Danson –versus- Kilindini Warehouses Ltd”
By consent it was agreed that the application be disposed of by way of written submissions. Both parties having duly filed and served their submissions by 7th September 2011 it is now upon this court to rule on the application.
This application arises from the decision of the learned Senior Resident Magistrate Hon. Ole Tanchu in SRMCC No. 3737 of 2005. The learned trial magistrate decided that case in favour of the Respondents herein and awarded damages in the sum of Kshs.52,000/-. Costs were thereafter taxed at Kshs.38,795/- thus the decree was issued for a sum of Kshs.94,075/-. The Appellants however being dissatisfied with the decision of the learned magistrate filed an appeal therefrom. They now come to this court to seek a stay of execution pending the inter parties hearing of that appeal.
I have read and have given careful consideration to the submissions filed by both parties in this matter. I am of the view that the Appellants have an ‘arguable’ appeal. In order not to render their appeal nugatory it is desirous that execution be stayed pending the hearing and determination of such appeal. As such I do grant a stay of execution as prayed subject only to the Appellant depositing within seven (7) days of todays date a sum of Kshs.90,000/- (read Ninety Thousand only) into a joint interest earning account opened in the names of both lawyers. Failure to comply with this pre-condition will mean that the stay is automatically set aside and execution may proceed.
It is so ordered.
Dated and Delivered in Mombasa this 13th day of October 2011.
M. ODERO
JUDGE
In the presence of:
Mr. Hamza for Appellant
No appearance by Respondent