[2021] KEHC 5018 (KLR)
The court found that the application for stay of execution was made without unreasonable delay, as it was filed slightly more than one month after the judgment and after the appeal had been lodged. The court determined that the applicants would suffer substantial loss if stay was not granted, given that the main...
Source-derived case information.
- Citation
- [2021] KEHC 5018 (KLR)
- Parties
- Appellant: Mash East Africa; Appellant: Khamis Abdulrahim Mohammed; Respondent: Stephen Kyalo
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E002 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mash East Africa
Appellant
Khamis Abdulrahim Mohammed
Appellant
Stephen Kyalo
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicants have demonstrated that they will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution was made without unreasonable delay, as it was filed slightly more than one month after the judgment and after the appeal had been lodged. The court determined that the applicants would suffer substantial loss if stay was not granted, given that the main contention on appeal was the quantum of damages. The court exercised its discretion to grant a stay of execution on condition that the applicants pay part of the decretal amount as security. The payment of Kshs.100,000 to the respondent within 30 days was ordered as a condition for the stay, failing which the stay would lapse. Costs of the application were ordered to abide the...
Court Disposition
application allowed with conditions
Orders
- Stay of execution of judgment or decree pending appeal is granted.
- The applicants shall pay the respondent Kshs.100,000 as part of the decretal amount within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCA NO. E002 OF 2021
MASH EAST AFRICA.................................................................1ST APPLICANT/APPELLANT
KHAMIS ABDULRAHIM MOHAMMED..............................2ND APPLICANT/ APPELLANT
-VERSUS-
STEPHEN KYALO....................................................................................................RESPONDENT
RULING
1. Before me is an application dated 27th January 2021 brought by way of Notice of Motion, seeking stay of execution of the judgment delivered against the applicant/appellant on 18/12/2020 in PMCC No. 154 of 2019 - Kilungu pending hearing and determination of the appeal.
2. The application has grounds on the face of the Notice of Motion and is supported by the affidavit sworn on 27th January 2021 by Geoffrey Kilonzo.
3. The application is opposed and a replying affidavit sworn by Stephen Kyalo on 5th February 2021 was filed in this regard.
4. Parties’ counsel filed written submissions to the application, which I have perused and considered.
5. Such applications for stay of executions of judgment or decrees are governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules – the relevant part of which states as follows –
6(2) No order for stay of execution shall be made under subrule
(1) unless –
a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
6. I note that the decision of the trial court herein sought to be stayed was made on 18/12/2020, and this application filed on 29/01/2021 slightly more than one month later and an appeal had been filed earlier on 13/01/2021. In my view, there was no inordinate delay in bringing the present application for stay.
7. Will the applicant suffer substantial loss if the stay orders sought are not granted? Having perused the grounds of appeal, the major contention is the quantum of damages not liability. I will thus grant stay but order that the applicant will pay part of the decree amount.
8. With regard to provision of security, the amount that this court will order to be paid by the applicant as condition for the stay, will operate as security.
9. Consequently, I allow the application and grant stay of execution of judgment or decree pending appeal on the following conditions –
(i) The applicant will pay the respondent the amount of Kshs.100,000/= as part of the decretal amount, within the next 30 days from today.
(ii) If the above amount is not paid within 30 days as ordered, the stay of execution hereby granted will automatically lapse.
(iii) Costs of the application will follow the decision in the appeal
DELIVERED, SIGNED & DATED THIS 21ST DAY OF JULY, 2021, IN OPEN COURT AT MAKUENI.
..............................
GEORGE DULU
JUDGE