[2007] KEHC 3448 (KLR)
The court held that although the application for review was not proper as the issue of a bank guarantee was not raised in the previous application, the fundamental purpose of security for stay of execution is to protect the respondent's ability to realize the judgment if the appeal fails. The court found that a bank...
Source-derived case information.
- Citation
- [2007] KEHC 3448 (KLR)
- Parties
- Appellant: Lochab Brothers Ltd; Respondent: Lilian Mumbi Nganga; Respondent: Moses Nyongesa; Respondent: Mary Mwaura
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 114 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Variation of Security for Stay of Execution
- Outcome
- Application allowed in part; stay of execution granted on condition of bank guarantee; costs awarded to respondent.
- Judges
- K Bauni
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lochab Brothers Ltd
Appellant
Lilian Mumbi Nganga
Respondent
Moses Nyongesa
Respondent
Mary Mwaura
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Variation of Security for Stay of Execution
Legal Issues
- 1 Whether the court can review its previous order requiring deposit of decretal sum and substitute it with a bank guarantee as security for stay of execution.
- 2 Whether a bank guarantee is an acceptable form of security in place of cash deposit for stay of execution.
Ratio Decidendi
The court held that although the application for review was not proper as the issue of a bank guarantee was not raised in the previous application, the fundamental purpose of security for stay of execution is to protect the respondent's ability to realize the judgment if the appeal fails. The court found that a bank guarantee is as effective as a cash deposit, as it binds the bank to pay the decretal sum if required. Therefore, the court exercised its discretion to grant a stay of execution on condition that the appellant provides a bank guarantee for the decretal sum within 15 days, with the guarantee remaining in force until the appeal is heard and determined. The Deputy Registrar is to...
Court Disposition
Application allowed in part; stay of execution granted on condition of bank guarantee; costs awarded to respondent.
Orders
- Appellant to deposit a bank guarantee for the decretal sum within 15 days.
- The bank guarantee must remain in force until the appeal is heard and determined, regardless of duration.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Appeal 114 of 2006
LOCHAB BROTHERS LTD:………..……. …………APPELLANT
VERSUS
LILIAN MUMBI NGANGA:……….…...…..….1ST RESPONDENT
MOSES NYONGESA:……………...………..2ND RESPONDENT
MARY MWAURA:……………………………3RD RESPONDENT
RULING
The appellant/applicant had filed an application dated 14th May 2007 seeking the court to vary and set aside an order made by the trial court to the effect that the appellant do deposit the decretal sum in an interest earning account as a condition of stay of execution. The court heard that application and dismissed the same. The current application seeks court to review those orders and allow the applicant banker to issue a bank guarantee as security in place of depositing cash.
Mr. Kigamwa prosecuted the application on behalf of Mr. Andambi while Mr. Kimani appeared for the respondent and opposed the application. I have considered their submissions and the application. I do concur with Mr. Kimani that as far as the application seeks court to review its orders is not proper. The applicant had sought court to set aside the trial courts order to deposit cash. That application was dismissed. The applicant wanted to be allowed to deposit a log book instead. In that application there was no mention of a bankers guarantee. The prayers in this application are totally new and were not subject to the earlier application which was dismissed.
However the above aside, it is clear that the applicant has been seeking to be allowed a stay of execution without depositing the decretal amount. Deposit of decretal sum or any other security is to ensure that in case of an appeal not succeeding the respondent can realize his judgment. Conditions are not set as a punishment to the appellant. I do concur with Mr. Kigamwa that bank guarantee is as good as depositing money. Once a bank has bound itself to pay a particular amount if called to then it has to do so. I will therefore grant an order of stay on condition that the appellant deposit a bank guarantee for the decretal sum within the next 15 days. The said guarantee must be specific that it will be in force until the appeal is head and determined regardless of the time it takes. The Deputy Registrar to scrutinize he guarantee and satisfy herself that it is proper.
The applicant will however pay the respondent the costs of this application which the court assess as Shs.3000/= to be paid within 15 days.
Dated and Delivered at Eldoret on 23rd October 2007.
KABURU BAUNI
JUDGE