[2018] KEHC 4627 (KLR)
The court found that while the respondent preferred a cash deposit as security, the appellant's offer of a bank guarantee from a reputable bank was sufficient and appropriate given the substantial amount involved. The court exercised its discretion to balance the scales of justice, noting that the amount in question...
Source-derived case information.
- Citation
- [2018] KEHC 4627 (KLR)
- Parties
- Appellant: Mash East Africa Limited; Respondent: Julius Kazungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 139 of 2018
- Procedural Posture
- Civil Appeal / Stay Application Ruling
- Outcome
- application_allowed_with_conditions
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mash East Africa Limited
Appellant
Julius Kazungu
Respondent
Procedural Posture
Civil Appeal / Stay Application Ruling
Legal Issues
- 1 What is the appropriate form of security for the due performance of the decree pending appeal.
- 2 Should a stay of execution be granted pending appeal.
Ratio Decidendi
The court found that while the respondent preferred a cash deposit as security, the appellant's offer of a bank guarantee from a reputable bank was sufficient and appropriate given the substantial amount involved. The court exercised its discretion to balance the scales of justice, noting that the amount in question was significant and that a bank guarantee would adequately secure the respondent's interests without imposing an unreasonable burden on the appellant. Accordingly, the court granted a stay of execution pending appeal on the condition that the appellant provides a bank guarantee from a reputable bank within 30 days, failing which the motion would be deemed dismissed.
Court Disposition
application_allowed_with_conditions
Orders
- Stay of execution of the decree in Nairobi C.M.C.C. No. 4307 of 2014 granted pending appeal, on condition that the appellant provides a bank guarantee from a reputable bank within 30 days.
- In default of providing the bank guarantee within 30 days, the motion will be treated as dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 139 OF 2018
MASH EAST AFRICA LIMITED..............................APPELLANT
-V E R S U S –
JULIUS KAZUNGU.................................................RESPONDENT
RULING
1) Mash East Africa Ltd, the appellant herein, took out the motion dated 27th March 2018 in which it sought for an order for stay of execution of the decree in Nairobi C.M.C.C. no. 4307 of 2014 Julius Kazungu =vs= Mash East Africa Ltd pending appeal. The motion is supported by the affidavit of Lennox Kitsao Shalo. When served with the aforesaid motion, Julius Kazungu, the respondent herein, filed grounds of opposition to resist the motion. When the motion came up for interpartes hearing, learned counsels made oral submissions.
2) I have considered the grounds stated on the face of the motion and those stated as grounds of opposition. I have further considered the rival oral submissions. I have already stated that the appellant/applicant is seeking for an order for stay of execution of the decree pending appeal. The respondent does not perse oppose the application for stay but he is opposed to the sort of security being offered. The applicant proposes to provide a bank guarantee as security for the due performance of the decree. The respondent is of the submission that a deposit of the decretal sum is a better form of security compared to a bank guarantee.
3) The background of this motion is short and straightforward. The respondent’s claim arose out of an alleged cost of a television set the respondent had allegedly consigned to the appellant to deliver in Mombasa from Nairobi. Following an exparte hearing on 5. 7.2017, judgment was entered in favour of the respondent and against the appellant in the sum of ksh.4,043,990/45 on 28. 9.2017. The appellant filed an application seeking to set aside the exparte judgment which application was dismissed thus giving rise to this appeal.
4) The question which this court must grapple with is the appropriate security for the due performance of the decree. I have already set out the arguments of both sides. The court has a wide discretion to balance the scales of justice. The appellant has offered to give a bank guarantee while the respondent is of the submission that a cash deposit of the decretal sum will suffice. The amount involved is not pocket change but a colossal amount of over four million shillings. I think a bank guarantee from a reputable bank will do.
5) In the end, I allow the application for stay of execution pending appeal on condition that the appellant/applicant provides a bank guarantee from a reputable bank within 30 days. In default, the motion will be treated as having been dismissed.
6) Costs of the motion to await the outcome of the appeal.
Dated, Signed and Delivered in open court this 6th day of July, 2018.
J. K. SERGON
JUDGE
In the presence of:
........................................for the Appellant
...................................for the Respondents