[2009] KEHC 1687 (KLR)
The court found that the deposit of Kshs.75,000/- was only a condition for the ex parte order of stay pending the inter partes hearing, not for the stay pending appeal. To comply with Order XLI Rule 4(2) of the Civil Procedure Rules and ensure the due performance of the decree, the court held that the appellant must...
Source-derived case information.
- Citation
- [2009] KEHC 1687 (KLR)
- Parties
- Appellant: Malindi Management Strategy Limited; Respondent: Majengo Laundry Corner
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 56 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malindi Management Strategy Limited
Appellant
Majengo Laundry Corner
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the deposit of Kshs.75,000/- suffices as security for the due performance of the decree.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the deposit of Kshs.75,000/- was only a condition for the ex parte order of stay pending the inter partes hearing, not for the stay pending appeal. To comply with Order XLI Rule 4(2) of the Civil Procedure Rules and ensure the due performance of the decree, the court held that the appellant must deposit the entire decretal sum of Kshs.244,597/- in court. Since Kshs.75,000/- had already been deposited, the appellant was ordered to deposit the balance of Kshs.169,597/- within 30 days, failing which the respondent would be at liberty to execute the decree. The court thus balanced the interests of both parties by granting a conditional stay of execution.
Court Disposition
Conditional stay of execution granted.
Orders
- Prayer 2 of the application for stay of execution is granted on condition that the entire decretal sum of Kshs.244,597/- is deposited in court.
- The appellant to deposit the balance of Kshs.169,597/- within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 56 of 2009
MALINDI MANAGEMENT STRATEGY LIMITED……………...….APPELLANT
VERSUS
MAJENGO LAUNDRY CORNER …………………..…………….RESPONDENT
R U L I N G
This is an application by the Appellant for an order of Stay of execution of all orders emanating from the Ruling on 20th March 2009 in Mombasa Civil suit Number 1235 of 1995 pending the hearing and determination of the appeal herein or further orders of the court.
Judgment was delivered in favour of the Respondent. I am told that the decretal sum is Shs.244,597/- The Appellant applied for review of the judgment. The application was dismissed hence this appeal.
At the ex parte hearing of this application, the Court at the Appellant’s instance or offer made on order that Shs.75,000/- be deposited in court as condition for the ex parte order of stay pending inter partes hearing.
I do not agree with the Applicant/Appellant that the said deposit was a term of stay of execution pending appeal. The record shows that it was a condition for grant of the ex parte order of stay of execution pending inter partes hearing.
As a result, this court will hear the application on its merits. The Appellant contends that if the stay is not grants the appeal herein which stands high chances of success may be rendered nugatory and will suffer grave injustice.
The Appellant states in paragraph 10 of the affidavit in support that it is ready and willing to deposit the decretal amount in court pending the outcome of this appeal and abide by any orders of the court may give as a sign of good faith.
In response the Respondent proposes that the Appellant deposits the sum of Shs.244,597/- being the decretal sum and not shs.75,000/- which was the original principal sum on the claim.
To ensure that there is strict compliance with the provisions of Order XLI Rule 4(2) of the Civil Procedure Rules as regard the giving of security by an Applicant for the due performance of the decree and in view of the offer by the Appellant, it is only fair and just that the entire sum is fully secured.
I do hereby grant prayer 2 of the application on condition that the entire decretal sum is deposited in court. The decretal sum is Shs.244,597/- out of which the Appellant has deposited a sum of Kshs.75,000/- . It shall therefore deposit into court the balance or difference in the sum of Kshs.169,597/- within the next 30 days from today. In default the Respondent shall be at liberty to execute the decree. The Appellant shall pay the costs of the application.
Dated and delivered at Mombasa this 28th day of September 2009.
M. K. IBRAHIM
J U D G E