[2011] KEHC 1686 (KLR)
The court found that both parties agreed on the necessity of a stay of execution pending appeal. The judge was convinced that the appellant would suffer substantial loss if stay was not granted, as the respondent may not be able to refund the decretal sum should the appeal succeed. However, considering the financial...
Source-derived case information.
- Citation
- [2011] KEHC 1686 (KLR)
- Parties
- Appellant: Municipal Council of Nanyuki; Respondent: Samuel Muthee Bernard
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 180 of 2010
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Decree, Substantial Loss, Conditional Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Nanyuki
Appellant
Samuel Muthee Bernard
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to an order for stay of execution of the decree pending appeal.
- 2 Whether security should be imposed as a condition for stay of execution.
- 3 Whether the appellant would suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that both parties agreed on the necessity of a stay of execution pending appeal. The judge was convinced that the appellant would suffer substantial loss if stay was not granted, as the respondent may not be able to refund the decretal sum should the appeal succeed. However, considering the financial challenges faced by local authorities, the court determined that a conditional stay was appropriate. The operative condition was that the appellant must deposit the decretal sum in an interest-earning account in the joint names of the advocates for both parties within 45 days, failing which the stay would lapse and the respondent would be at liberty to execute the decree.
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Order for stay of execution of the decree pending appeal granted on condition that the appellant deposits the decretal sum in an interest earning account in the joint names of the advocates within 45 days.
- In default of deposit, the motion stands dismissed and the respondent is at liberty to execute the decree.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL APPEAL NO. 180 OF 2010
MUNICIPAL COUNCIL OF NANYUKI.……………..APPLICANT/APPELLANT
VERSUS
SAMUEL MUTHEE BERNARD……………………………….….....RESPONDENT
JUDGMENT
In the Notice of Motion dated 25th October 2010 Nanyuki Municipal council, the Appellant/Applicant sought for an order for stay of execution of the decree pending appeal. The Motion is supported by the affidavit of Lucy Nyaga sworn on the same date. Samuel Muthee Bernard, the Respondent herein, opposed the Motion by filing a replying affidavit he swore on 20th January 2011.
On 29th September 2010, Hon. S. Muketi, learned Chief magistrate, entered Judgement against the Appellant vide Nyeri C.M.C.C. No. 323 of 2005. The Appellant is aggrieved hence this appeal. The Appellant has now sought for an order for stay of execution of the decree pending Appeal. It is the submission of the Appellant that it would suffer substantial loss if the order is not granted, in that it would be extremely difficult to restitute the appellant if the Appeal succeeds. The Appellant further beseeched this court not to order it to provide security as a condition because it is in a position to satisfy the decree in the even the appeal sails through. The respondent was of the view that the Appellant should be given a conditional order of stay in terms of the provisions ofOrder 42 of the Civil Procedure rules. The Respondent pointed out that the Appellant may not be able to satisfy the decree in full at once at the end of the Appeal.
It is clear from the submissions and the material placed before me that the combatants agree that there is need t issue the order of stay pending appeal. I am also convinced that if the order for stay is not given the Respondent may not be in a position to refund the decretal sum if the appeal succeeds. This means that the Appellant will suffer substantial loss. On the other hand it is also a matter of common notoriety that local Authorities all over the country have been unable to meet their financial responsibilities on time hence it is necessary for the Appellant to be given a conditional stay.
I hereby grant orders in terms of prayer (a) of the Motion dated 25th October 2010 on condition that the Appellant deposits the decretal sum in an interest earning account in the joint names of learned advocates appearing in this Appeal within 45 days. In default the Motion shall automatically stand dismissed and the Respondent will be at liberty to execute the decree. Costs of the Motion to await the outcome of the Appeal.
Dated and delivered at Nyeri this 29th day of July 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mungai h/b Mwangi for Respondent and Ombachi h/b for M. Kariuki for Applicant.
J. K. SERGON
JUDGE