[2023] KEHC 21932 (KLR)
The court held that since the application for leave to appeal and stay pending appeal was struck out and the stay orders were discharged, and as the judgment debtor had not applied for a further stay of execution, there was no legal basis to withhold the deposited sum from the decree holder. The mere lodging of a...
Source-derived case information.
- Citation
- [2023] KEHC 21932 (KLR)
- Parties
- Applicant: Lubulellah & Associates Advocates; Respondent: Patrick Sagwa Kisia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1060 of 2020
- Procedural Posture
- Miscellaneous Civil Application / Ruling on Motion for Release of Deposited Funds
- Outcome
- application allowed
- Judges
- A Mabeya
- Legal Topics
- Stay of Execution, Release of Security, Appeals Process, Conditional Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lubulellah & Associates Advocates
Applicant
Patrick Sagwa Kisia
Respondent
Procedural Posture
Miscellaneous Civil Application / Ruling on Motion for Release of Deposited Funds
Legal Issues
- 1 Whether the sum of Kshs. 2 million deposited as a condition for stay should be released to the decree holder after the striking out of the judgment debtor's application and discharge of stay orders.
- 2 Whether the lodging of a notice of appeal without an application for stay of execution is sufficient to prevent release of the deposited funds.
Ratio Decidendi
The court held that since the application for leave to appeal and stay pending appeal was struck out and the stay orders were discharged, and as the judgment debtor had not applied for a further stay of execution, there was no legal basis to withhold the deposited sum from the decree holder. The mere lodging of a notice of appeal does not amount to a stay of execution. Therefore, the decree holder is entitled to the release of the Kshs. 2 million deposited as a condition for stay, as there is no stay in force and the judgment debtor has not taken steps to prevent execution pending appeal.
Court Disposition
application allowed
Orders
- The sum of Kshs. 2,000,000 deposited in court as a condition for stay shall be released to the decree holder.
Full Case Text
Judgment text and source record
26 paragraphs
Kisia v Lubulellah & Associates Advocates (Miscellaneous Civil Application 1060 of 2020) [2023] KEHC 21932 (KLR) (Commercial and Tax) (18 August 2023) (Ruling)
Neutral citation: [2023] KEHC 21932 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Miscellaneous Civil Application 1060 of 2020
A Mabeya, J
August 18, 2023
Between
Patrick Sagwa Kisia
Respondent
and
Lubulellah & Associates Advocates
Applicant
Ruling
1. Before Court is the Motion on Notice dated 28/2/2023 by the Advocate. The same is brought under Order 1 Rule 12, Order 24 Rules 1 and 3 of the Civil Procedure Rules amongst other provisions of the law.
2. The application seeks that the sum of Kshs. 2M paid into court for and on behalf of the Judgment debtor as a condition for stay be released to the decree holder.
3. The grounds thereof were that on 25/7/2022, the Court granted the judgment debtor a stay of execution on condition that he deposited a sum of Kshs. 2 million within 14 days. That he did deposit the said amount on 3/8/2022. That on 24/2/2023, the Court struck out the judgment debtor’s application and discharged the stay orders. That the judgment debtor has no other known assets.
4. The application was opposed vide the replying affidavit of the judgment debtor sworn on 3/5/2023. He asserted that the application was mischievous and made in bad faith as the decree holder knew that he had already lodged an appeal against the ruling made on 24/2/2023. That if the orders sought are granted, his appeal in the Court of Appeal will be rendered nugatory.
5. The parties filed their submissions dated 8/5/2023 for the applicant and 14/6/2023 for the Judgment debtor. I have carefully considered the respective parties’ contestations and the submissions.
6. It is not in dispute that the decree holder has a judgment in its favour. That on 25/7/2022 Mshila J granted the judgment debtor a conditional stay. The condition was that the judgment debtor was to deposit in Court a sum of Kshs. 2 Million which he promptly did. The said money was to be held until the hearing and determination of the application for leave to appeal and stay pending appeal.
7. The application for leave to appeal and stay pending appeal was finally heard and struck out on 24/2/2023. The Court also set aside the order of 25/7/2022 that had stayed the execution.
8. The judgment debtor contends that he has appealed against the order of this Court of 24/2/2023 and that the same has chances of succeeding. However, it is trite law that an appeal perse does not lead an automatic stay of proceedings or stay of execution (see Order 42 Rule 6). A party who wishes to exercise his undoubted right of appeal MUST apply for stay to hold back the process of execution.
9. In the present case, although the judgment debtor has already lodged a Notice of Appeal evincing his intention to appeal against the order of this Court of 24/2/2023, he has nevertheless not applied for stay of execution. There being no stay in force, I see no reason why the decree holder should be kept away from the fruits of its decree.
10. Accordingly, the application dated 24/2/2023 is hereby allowed as prayed.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF AUGUST, 2023. A. MABEYA, FCIArbJUDGE