[2012] KEHC 3212 (KLR)
The court found that while the appellant has a right to pursue her appeal, the respondent is equally entitled to the fruits of his judgment. The KShs.50,000/= already deposited was deemed insufficient as security. To safeguard the interests of both parties, the court granted a conditional stay of execution,...
Source-derived case information.
- Citation
- [2012] KEHC 3212 (KLR)
- Parties
- Appellant: Loice Ondisa Omolo; Respondent: Hassan Chitechi Mukholi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 65 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed subject to conditions.
- Legal Topics
- Stay of Execution, Security for Judgment, Consent Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Loice Ondisa Omolo
Appellant
Hassan Chitechi Mukholi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to an order of stay of execution pending appeal.
- 2 Whether the sum already deposited constitutes sufficient security for the due performance of the decree.
- 3 Whether the consent entered into by the appellant is binding and its effect on the application for stay.
Ratio Decidendi
The court found that while the appellant has a right to pursue her appeal, the respondent is equally entitled to the fruits of his judgment. The KShs.50,000/= already deposited was deemed insufficient as security. To safeguard the interests of both parties, the court granted a conditional stay of execution, requiring the appellant to deposit KShs.200,000/= in court within sixty days and to register a caveat against the specified property. The appellant was also directed to take steps to progress the appeal. Failure to comply with these conditions would result in the lapse of the stay and allow execution to proceed.
Court Disposition
Application for stay of execution allowed subject to conditions.
Orders
- The appellant to deposit in court a sum of KShs.200,000/= within sixty (60) days.
- A caveat to be registered against plot number South Wanga/Ekero/812 pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Appeal 65 of 2006
LOICE ONDISA OMOLO ............................................ APPELLANT
V E R S U S
HASSAN CHITECHI MUKHOLI .............................. RESPONDENT
R U L I N G
In her chamber summons dated 1st May 2010. The applicant is seeking an order of stay of execution pending the hearing and determination of her appeal. Judgment was entered against the applicant on 7th July 2006 for KShs.175,000/= together with interest and costs.
Parties filed written submissions in support and against the application. The appellant’s submission is that there was a breakdown of communication between herself and her former Advocate, Munyendo Muleshe & Co. Advocates and that she was made to sign a consent which she did not understand. The appellant has shown commitment and has paid KShs.50,000/=.
On his part, the respondent contends that the applicant was committed to civil jail and signed a consent whereby the decretal sum was to be paid by installment. However, upon release from prison, the appellant failed to pay the installments and only paid KShs.50,000/=.
The pleadings show that a consent was filed on 6th April 2010 before the Mumias Court in Mumias SRMCC 447 of 2004. The said consent shows that the decretal sum was to be paid by way of installments that are staggered. The appellant thumb-printed the consent. It is further established that since April 2010 no other amount has been paid. The appeal was filed on 2nd August 2006 and no action has been taken since then.
Whereas it is the appellant’s right to pursue her appeal, it is equally the right of the respondent to enjoy the fruits of his judgment. I do not wish to lock out the appellant from pursuing her appeal. However, the sum of KShs.50,000/= deposited cannot be held to be enough security. For purposes of safeguarding the interest of both parties I do allow the application for stay of execution dated 10th May 2010 subject to the following conditions.
(i)The appellant to deposit in court a sum of KShs.200,000/= within sixty (60) days hereof.
(ii)A caveat to be registered against plot number South Wanga/Ekero/812 pending the hearing and determination of the appeal.
(iii)The appellant to list her appeal for directions within sixty (60) days hereof and a record of appeal to be filed and served before then.
It is further ordered that should the appellant fail to pay the sum of KShs.200,000/= as ordered herein then the order of stay shall be deemed to have lapsed and execution shall take effect. Each party shall meet his/her own costs.
Delivered and dated at Kakamega this 26th day of March 2012
SAID J. CHITEMBWE
J U D G E