[2019] KEHC 1875 (KLR)

[2019] KEHC 1875 (KLR)

The court found that the application for stay of execution was filed within a reasonable time (15 days after judgment), satisfying the first condition. The applicant's claim of substantial loss was unrebutted due to the respondent's failure to file a replying affidavit, and the court held that the evidential burden...

Source-derived case information.

Citation
[2019] KEHC 1875 (KLR)
Parties
Appellant: Musitano Rocco; Respondent: Aniello Sterelli
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Case Number
Civil Appeal 242 of 2018
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
application allowed with conditions
Judges
DO Chepkwony
Legal Topics
Stay of Execution, Substantial Loss, Security for Due Performance
Source Language
en
Civil Procedure Stay of Execution Substantial Loss Security for Due Performance

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Summary, issues, holding and outcome

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Parties

Musitano Rocco

Appellant

Aniello Sterelli

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the application for stay of execution pending appeal was filed without undue delay.
  2. 2 Whether the applicant demonstrated substantial loss if stay is not granted.
  3. 3 Whether the applicant offered adequate security for due performance of the decree.

Ratio Decidendi

The court found that the application for stay of execution was filed within a reasonable time (15 days after judgment), satisfying the first condition. The applicant's claim of substantial loss was unrebutted due to the respondent's failure to file a replying affidavit, and the court held that the evidential burden to show ability to repay the decretal sum shifted to the respondent, who did not discharge it. The applicant also expressed willingness to comply with any security conditions. Consequently, all three conditions under Order 42 Rule 6(2) were met. The court exercised its discretion to grant a conditional stay of execution, requiring the full decretal sum to be deposited in a...

Court Disposition

application allowed with conditions

Orders

  • Stay of execution of the judgment and decree entered on 7th November 2018 is granted pending determination of the appeal, on condition that the full decretal sum is deposited in a joint interest earning account in the joint names of both advocates within 30 days from the date of the ruling, failing which the stay...
  • Costs of the application will be in the cause.