[2021] KEHC 9222 (KLR)
The court found that the appellants had demonstrated there was no risk of substantial loss to the respondent if a stay of execution was granted, as the securities held by the respondent far exceeded the decretal sum. The application for stay was made without delay. Balancing the appellants' right of appeal with the...
Source-derived case information.
- Citation
- [2021] KEHC 9222 (KLR)
- Parties
- Appellant: Leonard Munyua & Grace Simaloi Sankunta T/A Munleo Hardware & Metal Fabrication; Respondent: Equity Bank Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E170 of 2020
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Injunctions, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Munyua & Grace Simaloi Sankunta T/A Munleo Hardware & Metal Fabrication
Appellant
Equity Bank Kenya Limited
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to an order restraining the respondent from executing the lower court's decree pending appeal.
- 2 Whether the respondent would suffer substantial loss if stay is granted.
Ratio Decidendi
The court found that the appellants had demonstrated there was no risk of substantial loss to the respondent if a stay of execution was granted, as the securities held by the respondent far exceeded the decretal sum. The application for stay was made without delay. Balancing the appellants' right of appeal with the respondent's right to enjoy the fruits of judgment, the court exercised its discretion to grant a stay of execution pending the hearing and determination of the appeal.
Court Disposition
Application for stay of execution granted.
Orders
- Stay of execution of the lower court judgment granted until the appeal is heard and determined.
- Costs shall abide by the outcome of the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. E170 OF 2020
LEONARD MUNYUA & GRACE SIMALOI SANKUNTA
T/A MUNLEO HARDWARE &
METAL FABRICATION ................................APPELLANT
VERSUS
EQUITY BANK KENYA LIMITED ...........RESPONDENT
RULING
The appellants filed an application by way of Notice of Motion stated to be under Order 42 Rule 2, Sections 1, 1A, 3 and 3A of the Civil Procedure Act, for orders that the respondent be restrained from executing a decree from the lower court pending the appeal filed herein. The judgment of the lower court was delivered on 17th June, 2020. This application was filed on 15th August, 2020 and therefore there was no delay in the circumstances.
Although the cited provisions do not relate to stay of execution or injunction orders, I believe appellants should have a hearing. I recognize the fact that the appellants have the right of appeal while at the same time, the respondent has a judgment in its favour.
The appellants have demonstrated that there is no risk they pause to the respondent if an order of stay is granted because, the value of securities held by the respondent far exceed the decretal sum. In that case therefore, the respondent may not suffer any substantial loss in the event the appeal fails.
I am inclined therefore to stay the execution of the lower court judgment until such time the appeal is heard and determined. The costs shall abide by the decision of the appeal.
Dated, signed and delivered at Nairobi this 11th day of February, 2021.
A. MBOGHOLI MSAGHA
JUDGE