[2010] KEHC 3110 (KLR)
The court found that, in the interests of justice, the applicant should be given an opportunity to be heard on appeal before execution is finalized. However, to balance the interests of both parties, the stay of execution is conditional upon the applicant depositing the full decretal amount in a joint...
Source-derived case information.
- Citation
- [2010] KEHC 3110 (KLR)
- Parties
- Appellant: Maasai Ostrich Farm Limited; Respondent: Kengrow Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Appeals Process, Security for Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maasai Ostrich Farm Limited
Appellant
Kengrow Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending the hearing and determination of the appeal.
- 2 Whether the respondent will be prejudiced by the grant of a stay of execution.
- 3 Whether the applicant should provide security for the due performance of the decree.
Ratio Decidendi
The court found that, in the interests of justice, the applicant should be given an opportunity to be heard on appeal before execution is finalized. However, to balance the interests of both parties, the stay of execution is conditional upon the applicant depositing the full decretal amount in a joint interest-earning account, paying auctioneer's charges, and filing the record of appeal within 90 days. The stay will lapse within 12 months unless extended. The court emphasized that the applicant did not challenge the substantive order of 14th October, 2009, but only the dismissal of the application for stay and issues relating to costs. The conditional stay ensures that the respondent is...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- The applicant shall deposit the full decretal amount into an interest earning account in the joint names of the parties’ advocates within 15 days.
- The applicant shall pay the Auctioneer’s charges as agreed or assessed by the lower court.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 39 of 2010
MAASAI OSTRICH FARM …………………………...APPELLANT
VERSUS
KENGROW LIMITED……………………………….RESPONDENT
R U L I N G
1. Maasai Ostrich Farm Limited who is the appellant, (hereinafter referred to as the applicant), seeks substantively an order of stay of execution of the ruling and order of the Senior Resident Magistrate delivered on10th February, 2010 pending the hearing and determination of its appeal. The applicant is apprehensive that unless the orders sought are granted, Kengrow Limited who is the respondent herein will proceed to enforce the order in his favour and such enforcement will render the appeal nugatory.
2. Counsel for the applicant citing Reliance Bank Ltd vs Norlake Investments Ltd (2202) IEA 227 and Butt vs Rent Restriction Tribunal (Civil Application No. Nai 6 of 1979), submitted that the applicant would suffer irreparably if an order of stay of execution pending appeal is not granted.
3. The respondent has objected to the application through a replying affidavit sworn by its Director Rajesh Hiran Andani. The Director swears that the amount of the decree is only Kshs.331,834/= which amount the respondent is capable of refunding should the applicant succeed in its appeal. The respondent’s counsel Kariba Mbaabu has also sworn a replying affidavit in which he explains how the decree sought to be stayed arose, and the fact that the applicant took no action after the ruling of the trial magistrate which was delivered on 14th October, 2009 and only filed an application for stay in the lower court on 7th January, 2010 when the process of execution was underway.
4. Counsel for the respondent argued before this court that that there was no order made by the lower court on 10th February, 2010 which was capable of enforcement apart from the order of costs made pursuant to the dismissal of the applicant’s counter-claim. Counsel for the respondent pointed out that the appellant has not appealed against the order made by the lower court on14th October, 2009or the consequent decree and therefore the order for stay of execution sought by the applicant would not affect the decree and order of14th October, 2009.
5. I have carefully considered the application, the affidavit in support and in reply as well as the submissions made by counsel and the authorities cited. I find that the order made by the lower court on14th October, 2009 which is the subject of the decree sought to be executed by the respondent was in the following terms:
(i)That the defendant be and is hereby given 30 days either to have the matter transferred to the High Court and/or to bring an order staying these proceedings.
(ii)That in default the counterclaim herein shall stand struck out with costs to the plaintiff for want of jurisdiction.
(iii)That the plaintiff will have the costs of this application.
6. It is evident from the affidavit sworn on 16th February, 2010 by Grace Kemei the legal officer of the applicant that the ruling of 10th February, 2010 which is the subject of the current appeal was one dismissing an application for stay of execution or decree extracted pursuant to the ruling delivered giving the applicant limited time to comply and dismissal of the application seeking extension of time. The applicant does not appear to have a problem with the order of14th October, 2009. The issue is the dismissal of the applicant’s subsequent application for stay of execution and also the issue of the taxation of the Bill of costs.
7. I think that in the circumstances of this case, it is necessary that the applicant be given an opportunity of being heard on his appeal before the execution process is finalized. The interest of justice demands that I balance the interest of both parties by issuing a conditional order of stay of execution pending appeal as follows:
(i)That the applicant shall deposit the full decretal amount into an interest earning account in the joint names of the parties’ advocates within 15 days from the date hereof.
(ii)That the applicant shall pay the Auctioneer’s charges which shall either be agreed upon or assessed by the lower court.
(iii)That the applicant shall file a record of appeal within 90 days from the date hereof.
(iv)That the order for stay of execution pending appeal shall lapse within 12 months unless otherwise extended by the court. Those shall be the orders of this court.
Dated and delivered this 19th day of March, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant/applicant absent
Mbaabu for the respondent
Eric - Court clerk