[2024] KEHC 1545 (KLR)
The court found that although the appellant had not demonstrated that the respondent was impecunious or unable to refund the decretal sum if the appeal succeeded, in the interests of fairness to both parties, a stay of execution should be granted. However, the stay was made conditional upon the appellant depositing...
Source-derived case information.
- Citation
- [2024] KEHC 1545 (KLR)
- Parties
- Appellant: Charles Mwangi Mathenge; Respondent: Ivin Chepng’Eno Alias Ivy Chepngeno
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- M Muya
- Legal Topics
- Stay of Execution, Money Decree, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mwangi Mathenge
Appellant
Ivin Chepng’Eno Alias Ivy Chepngeno
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 judgment and decree pending appeal.
- 2 Whether the respondent's ability to refund the decretal sum if the appeal succeeds is relevant to the grant of stay.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that although the appellant had not demonstrated that the respondent was impecunious or unable to refund the decretal sum if the appeal succeeded, in the interests of fairness to both parties, a stay of execution should be granted. However, the stay was made conditional upon the appellant depositing the entire decretal sum in court within 30 days, failing which execution would proceed. This approach balances the appellant's right to appeal with the respondent's right to enjoy the fruits of her judgment, and ensures security for the due performance of the decree.
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution of the judgment and decree delivered on 17th April 2023 is granted pending determination of the appeal, on condition that the appellant deposits the entire decretal sum in court within 30 days from the date of the ruling.
- In default of deposit within 30 days, execution to issue.
Full Case Text
Judgment text and source record
18 paragraphs
Mathenge v Chepng’eno alias Ivy Chepngeno (Civil Appeal 33 of 2023) [2024] KEHC 1545 (KLR) (22 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1545 (KLR)
Republic of Kenya
In the High Court at Nyeri
Civil Appeal 33 of 2023
M Muya, J
February 22, 2024
Between
Charles Mwangi Mathenge
Appellant
and
Ivin Chepng’Eno Alias Ivy Chepngeno
Respondent
Ruling
1. The application dated 11th May 2023 and 5th June 2023 seeks the following orders:-1)That the court be pleased to order Stay of Execution of the Judgment and decree delivered on 17th April 2021, pending the hearing and determination of the appeal.
2. On 17th April 2023, Hon. Angima- SRM in Nyeri CMCC E293 of 2021 Ivy Chepng’eno alias Ivy Chepngeno v Charles Mwangi Mathenge awarded the Plaintiff general damages of Kshs. 800,000/=, and special damage of Kshs. 4,550/=. This is the decision subject of the appeal.
3. This is a money decree. Though it has not been shown that the Respondent is so impecunious as not to be able to refund the sum payable to her if a Stay is not granted, I will, in fairness to both parties order for Stay of Execution of the decree in the present suit but on the condition that the Applicant deposits in court the whole of the decretal sum within 30 days from today. In default execution to issue.
RULING READ AND DELIVERED IN OPEN COURT THIS 22ND DAY OF FEBRUARY 2024. In the presence of:-Ms. Miriti for Respondent.Maina Njage for Applicant.Court assistant: Andrew.............................JUSTICE MARTIN MUYAJUDGE OF THE HIGH COURT