[2023] KEHC 25982 (KLR)
The court found that since there was a consent on liability at 20:80 in favour of the respondents, a portion of the decretal sum was indisputably payable. The court held that requiring the appellant to pay one-third of the decretal sum (Kshs 500,000) to the respondents within 30 days struck a fair balance between...
Source-derived case information.
- Citation
- [2023] KEHC 25982 (KLR)
- Parties
- Appellant: Samwel Kimani Muthondu; Respondent: Francis Gitari Murathi (Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari); Respondent: Lily Muthoni Mvungu (Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari)
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E021 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- EM Muriithi
- Legal Topics
- Stay of Execution, Decretal Sum, Liability Apportionment, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kimani Muthondu
Appellant
Francis Gitari Murathi (Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari)
Respondent
Lily Muthoni Mvungu (Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution pending appeal should be granted.
- 2 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that since there was a consent on liability at 20:80 in favour of the respondents, a portion of the decretal sum was indisputably payable. The court held that requiring the appellant to pay one-third of the decretal sum (Kshs 500,000) to the respondents within 30 days struck a fair balance between the interests of both parties. This condition would ensure that the respondents receive part of the sum due while protecting the appellant from the risk of the appeal being rendered nugatory if the entire sum was paid and the appeal succeeded. The court thus granted a conditional stay of execution, emphasizing the balance of convenience and the need for security for due...
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution granted subject to payment of Kshs 500,000 to the respondents within 30 days.
- In default of payment, execution to issue.
Full Case Text
Judgment text and source record
21 paragraphs
Muthondu v Murathi ( Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari) & another (Civil Appeal E021 of 2023) [2023] KEHC 25982 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25982 (KLR)
Republic of Kenya
In the High Court at Chuka
Civil Appeal E021 of 2023
EM Muriithi, J
November 30, 2023
Between
Samwel Kimani Muthondu
Appellant
and
Francis Gitari Murathi ( Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari)
1st Respondent
Lily Muthoni Mvungu ( Suing as the Legal Representative of the Estate of the Late Erick Kimathi Gitari)
2nd Respondent
Ruling
1. Upon considering the application for stay of execution herein and noting that there is consent on liability at 20:80 in favour of the Respondent, the court considers that a certain amount of the decretal sum is payable despite successful challenge on the quantum of Kshs 1,860,740/=.
2. The court considers that a payment of 1/3 of the decretal sum meets the balance of convenience test while not making the appeal, if successful, nugatory by reason of failure to recover any substantial payments made in the meantime.
ORDER 3. Accordingly, the court grants a stay of execution subject to the payment of Kshs 500,000/= to the Respondent within 30 days. In default, execution to issue.
4. Cost in the cause.
DATED AND DELIVERED THIS 30TH DAY OF NOVEMBER 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. L.W. Wang’ombe Advocate for the Appellant.Mr. Muthomi Gitari Advocate for the Respondents.