[2021] KEHC 13464 (KLR)
The court found that although there was inordinate delay in filing the application for stay of execution, the appeal itself was filed within time and the COVID-19 pandemic may have exacerbated the delay. The court exercised its discretion to allow the application for stay of execution, subject to the condition that...
Source-derived case information.
- Citation
- [2021] KEHC 13464 (KLR)
- Parties
- Appellant: Minuteman Autoworld Ltd; Appellant: Charles Odero Liyakha; Appellant: Romenah Mutave Kaloki; Respondent: Michael Nyamweya Makori
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 240 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition of deposit of decretal sum.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Delay in Filing, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minuteman Autoworld Ltd
Appellant
Charles Odero Liyakha
Appellant
Romenah Mutave Kaloki
Appellant
Michael Nyamweya Makori
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules.
- 2 Whether the delay in filing the application for stay was unreasonable and if it can be excused.
- 3 Whether security for due performance should be ordered as a condition for stay.
Ratio Decidendi
The court found that although there was inordinate delay in filing the application for stay of execution, the appeal itself was filed within time and the COVID-19 pandemic may have exacerbated the delay. The court exercised its discretion to allow the application for stay of execution, subject to the condition that the applicants deposit the entire decretal sum in a joint interest earning account of the advocates for the parties or in court within 30 days. The court declined to release part of the decretal sum to the respondent at this stage, noting that the appeal was against the whole judgment.
Court Disposition
Application for stay of execution allowed on condition of deposit of decretal sum.
Orders
- The applicants shall deposit the decretal sum in a joint interest earning bank account of the advocates for the parties or in court within 30 days from the date hereof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 240 OF 2020
MINUTEMAN AUTOWORLD LTD...........................1ST APPELLANT/APPLICANT
CHARLES ODERO LIYAKHA....................................2ND APPELLANT/APPLICANT
ROMENAH MUTAVE KALOKI................................3RD APPELLANT/APPLICANT
VERSUS
MICHAEL NYAMWEYA MAKORI....................................................RESPONDENT
RULING
1. The Application dated 11th March, 2021 seeks orders that this honourable court be pleased to grant stay of execution of the judgment delivered by Hon. Orenge K.I (Mr.) Senior Resident Magistrate in Nairobi CMCC No. 6646 of 2015 on the 22nd May, 2020 pending hearing and determination of the appeal.
2. It is stated that the appeal is arguable with high chances of success. The delay herein is blamed on the delivery of the judgment without notice and further delay in the supply of typed proceedings. It is further averred that the outbreak of the COVID 19 Pandemic caused further delay. The Applicant is apprehensive that the Respondent may not be able to refund the decretal sum in the event that the Appeal is successful. The Applicant is willing to deposit security for the due performance of the decree.
3. In a replying affidavit filed in opposition to the application, it is stated that the Appeal has no chances of success. That the application is aimed at delaying the Respondent from enjoying the fruits of the judgment. The court was urged to have the decretal sum deposited in court and 50% of the same released to the Respondent to enable him seek treatment for the injuries sustained in the accident the subject matter of the suit.
4. I have considered the application and the response
5. Order 42 rule 6(2) Civil Procedure Rules 2010 provides for stay of execution as follows:
“No order for stay of execution shall be made under sub-rule (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. The judgment of the lower court was delivered on 22nd May, 2020. The instant application was filed on 16th March, 2021. The delay is inordinate. It is noted that the Appeal was filed within time. Thus the Applicant could have also filed the application despite the outbreak of the COVID 19 Pandemic, though it may have exacerbated the circumstances. This court is inclined to give the Appeal a chance to be heard on merits upon terms and conditions. It is however noted that the appeal is on the whole judgment and therefore it would not be appropriate to release part of the decretal sum at this stage.
7. With the foregoing, I allow the application on condition that the Applicant do deposit the decretal sum in a joint interest earning bank account of the Advocates for the parties or in court within 30 days from the date hereof.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF OCTOBER, 2021
B. THURANIRA JADEN
JUDGE