[2012] KEHC 4633 (KLR)
The court found that both parties expressed concern that the other would be unable to refund the decretal sum should the appeal succeed or fail. The appellants demonstrated willingness to deposit the entire decretal amount in an interest-earning account as security, which the court deemed reasonable and just. The...
Source-derived case information.
- Citation
- [2012] KEHC 4633 (KLR)
- Parties
- Appellant: Kioko Mang’eli; Appellant: Kimani Chege; Respondent: Murage & Mwangi Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 556 of 2010
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of security.
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Money Decree, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Mang’eli
Appellant
Kimani Chege
Appellant
Murage & Mwangi Advocates
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules.
- 2 Whether the appellants will suffer substantial loss if stay is not granted.
- 3 Whether security for the due performance of the decree has been adequately offered.
Ratio Decidendi
The court found that both parties expressed concern that the other would be unable to refund the decretal sum should the appeal succeed or fail. The appellants demonstrated willingness to deposit the entire decretal amount in an interest-earning account as security, which the court deemed reasonable and just. The court held that this arrangement would protect the interests of both parties and mitigate the risk of substantial loss. Consequently, the court granted a stay of execution on condition that the appellants deposit the full decretal amount in a joint interest-earning account within 30 days, failing which the stay would lapse.
Court Disposition
Stay of execution granted on condition of security.
Orders
- The appellants shall deposit the full decretal amount in an interest-earning account in the joint names of the advocates for the appellants and the respondent within 30 days.
- The stay of execution shall lapse if the account is not opened within 30 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO.556 OF 2010
KIOKO MANG’ELI ………………………............…………………………………….. 1st APPELLANT
KIMANI CHEGE…………………………………….........………………………….. 2ND APPELLANT
VERSUS
MURAGE & MWANGI ADVOCATES…..……………...........……………………… RESPONDENT
RULING
Notice of Motion dated 1. 12. 2010 seeks stay of execution of Decree issued in CMCC No.4766 of 2009 pending hearing and determination of this appeal.
The appellants submit that they have met the provisions given under Order 42 rule 6(1) and (2) Criminal Procedure Code Rules which came into force on 10/12/2010.
Summary judgment was entered against the Appellants. The Appellants will suffer substantial loss since they will be forced to pay unexplained and exaggerated interest and costs. The Respondent did not represent them. He represented a limited liability Company known as N – Link Communication Ltd.
The Respondent has simply deponed that he is not a man of straw but no evidence has been demonstrated. Further this application was filed within 3 weeks of judgment it is not delayed.
On issue of security the applicant has offered security by their willingness to deponent the entire decretal amount in an interest earning account as may be directed by court within 30 days.
The Applicant relies on authorities filed in court. Namely
(1)HCCA No.44/2008 University of Nairobi & Another –vs- Peter Kiplangat Tumuwhere security was by a guarantee
(2)HCCA No. 18/2007 of Nakuru Wifay Investments Ltd –vs- Monica Wangui Mweman & othersthe court ordered deposit of Kshs.200,000/= in an interest earning account.
The Respondent has submitted that the Applicant has not satisfied the requirement of “substantial loss”. The court has said (Musinga J) “It is not enough to depone that he will suffer substantial loss”. Further the substantial loss can be show the “Respondent is a man of straw and therefore that he will be unable to refund the payment if appeal is not successful.
It is submitted that successful litigant should not be kept from the fruits of his judgment and that money decree cannot be subject of stay of execution order.
In Kenya Shell Ltd. N. Benjamin Karuga the court said it is not normal for an appeal to be rendered nugatory in money decree. The court proceeded to say that “however money decree can be stayed.”
In my view the parties on both sides are afraid that whoever wins the appeal shall not be able to access funds to execute decree. The Applicant has shown willingness to deposit the entire decretal amount in an interest earning account to buy a stay of execution. This appears reasonable and just to me. The Appellant shall be deprived of decretal amount which is a substantial loss in the circumstances of this case I order the Applicant to deposit the full decretal amount in an interest earning account in the joint names of advocate for Appellant and the Respondent to be held until the appeal is determined.
The account shall be opened within 30 days from this order failing which the stay shall lapse.
Stay of execution is therefore granted in the said terms.
Dated and delivered this 14th day of March, 2012.
J.N. KHAMINWA
JUDGE