[2022] KEHC 12574 (KLR)
The court found that the appellant had demonstrated substantial loss would occur if the stay was not granted, as the respondents did not controvert the assertion of their inability to refund the decretal sum. The application for stay was filed promptly and the appellant offered security for due performance. The...
Source-derived case information.
- Citation
- [2022] KEHC 12574 (KLR)
- Parties
- Appellant: Geoffrey Kiplangat Mayek; Respondent: Cicilia Wanjiru Nyambura; Respondent: Titus Kimatu Kakite
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E267 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution allowed, conditional on deposit of decretal sum.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Kiplangat Mayek
Appellant
Cicilia Wanjiru Nyambura
Respondent
Titus Kimatu Kakite
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated sufficient grounds for stay of execution of the trial court's decree pending appeal.
- 2 Whether the appellant will suffer substantial loss if the stay is not granted.
- 3 Whether the application for stay was filed without unreasonable delay.
Ratio Decidendi
The court found that the appellant had demonstrated substantial loss would occur if the stay was not granted, as the respondents did not controvert the assertion of their inability to refund the decretal sum. The application for stay was filed promptly and the appellant offered security for due performance. The court therefore allowed the application for stay of execution of the trial court's decree pending appeal, conditional upon the appellant depositing the decretal sum in an interest-earning joint account within 45 days.
Court Disposition
Application for stay of execution allowed, conditional on deposit of decretal sum.
Orders
- Stay of execution of the trial court's decree granted pending appeal, on condition that the appellant deposits the decretal sum in an interest-earning account in the joint names of the advocates or firms of advocates within 45 days.
- In default of deposit, execution to issue.
Full Case Text
Judgment text and source record
28 paragraphs
Mayek v Nyambura & another (Suing as the Legal Representatives and Administrators of the Estate of Andre Mwanza Muindi - Deceased) (Civil Appeal E267 of 2022) [2022] KEHC 12574 (KLR) (Civ) (25 August 2022) (Ruling)
Neutral citation: [2022] KEHC 12574 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E267 of 2022
JK Sergon, J
August 25, 2022
Between
Geoffrey Kiplangat Mayek
Appellant
and
Cicilia Wanjiru Nyambura
1st Respondent
Titus Kimatu Kakite
2nd Respondent
Suing as the Legal Representatives and Administrators of the Estate of Andre Mwanza Muindi - Deceased
Ruling
1)The subject matter of this ruling is the motion dated May 19, 2022 taken out by the appellant whereof he sought for an order for stay of execution of the trial court’s decree pending appeal. The appellant filed the affidavit sworn by Beatrice Muriithi in support of the motion. The respondent filed the replying affidavit sworn by Bernard M. Kitindio to oppose the application.
2)I have considered the grounds stated on the motion and the rival affidavits. The appellant averred that he preferred this appeal against the judgment delivered by the trial court in faovur of the respondent.
3)He argued that if the judgment sum of Kshs 3,556,912/= is paid to the respondent the appellant may suffer substantial loss in that the respondent is not in a financial position to make a refund should the appeal turn successful. The appellant further offered to deposit the decretal sum as security for the due performance of the decree.
4)The respondents are of the submission that the appellant’s motion does not meet the requirements for the grant of an order for stay of execution of the decree pending appeal. They further averred that there is no demonstration on the part of the appellant that he would suffer substantial loss if the order of stay is not granted.
5)It is said that the appellant’s sole intention in filing the instant motion is to frustrate and deny the respondents their right to enjoy the fruits of their judgment.
6)Having considered the rival averments, it is clear that the respondents have not controverted the appellant’s assertion that if the decretal sum is paid to them, they will not be in a position to make a refund should the appeal turn successful. The respondents did not discharge the burden of showing that they are in a financial position to refund the decretal sum.
7)I am satisfied that the appellant has demonstrated the substantial loss he would suffer if the order for stay of execution is denied.
8)The judgment in this matter was delivered on April 4, 2022 and the appeal was filed on May 4, 2022 while the instant motion was filed on May 19, 2022. I am convinced that the application was filed without unreasonable delay.
9)In the end, I find the motion dated May 19, 2022 to be meritorious. The same is allowed. Consequently, an order for stay of execution of the decree of the trial court is granted pending appeal on condition that the appellant deposits the decretal in an interest earning account in the joint names of the advocates or firms of advocates appearing in this appeal within 45 days. In default, execution to issue. Costs of the motion to abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF AUGUST, 2022. ......................................JK SERGONJUDGEIn the presence of:………………………………. for the Applicant………………………………. for the Respondent