[2022] KEHC 11749 (KLR)
The court found that while the parties agreed in principle to a stay of execution pending appeal, they could not agree on the form of security, particularly whether it should comply with Islamic banking principles. The court held that the respondent is entitled to a stay of execution upon provision of adequate...
Source-derived case information.
- Citation
- [2022] KEHC 11749 (KLR)
- Parties
- Applicant: Muthoni Kamau t/a Muthoni Kamau Advocates; Respondent: Zamzam A. Abib t/a Abib & Associates Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E477 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Notice of Motion for stay of execution allowed on terms.
- Judges
- DAS Majanja
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Bank Guarantee, Undertakings by Advocates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthoni Kamau t/a Muthoni Kamau Advocates
Applicant
Zamzam A. Abib t/a Abib & Associates Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to a stay of execution of the court's orders pending appeal.
- 2 What form of security should be provided for the decretal sum during the pendency of the appeal.
- 3 Whether the security arrangement must comply with Islamic banking principles.
Ratio Decidendi
The court found that while the parties agreed in principle to a stay of execution pending appeal, they could not agree on the form of security, particularly whether it should comply with Islamic banking principles. The court held that the respondent is entitled to a stay of execution upon provision of adequate security. To balance the interests of both parties, the court ordered that the respondent provide a bank guarantee for the decretal sum from a reputable bank to be agreed upon by the parties within 30 days. If the parties could not agree, the respondent was to deposit the sum in court. Failure to comply with these conditions would result in the lapse of the stay order. The court...
Court Disposition
Notice of Motion for stay of execution allowed on terms.
Orders
- An order of stay of execution of the ruling and decree is granted pending hearing and determination of the intended appeal.
- The respondent shall provide security in the form of a bank guarantee for KES 4,500,000.00 from a reputable bank to be agreed upon within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
Muthoni Kamau t/a Muthoni Kamau Advocates v Zamzam A . Abib t/a Abib & Associates Advocates (Miscellaneous Application E477 of 2021) [2022] KEHC 11749 (KLR) (Commercial and Tax) (19 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11749 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Miscellaneous Application E477 of 2021
DAS Majanja, J
May 19, 2022
Between
Muthoni Kamau t/a Muthoni Kamau Advocates
Applicant
and
Zamzam A . Abib t/a Abib & Associates Advocates
Respondent
Ruling
1. On February 4, 2022, I made the following orders following the Applicant’s successful application to enforce an undertaking:(a)The Respondent is directed to honour the undertaking contained in the letter dated 21st September 2018 within thirty (45) days of this order by paying to the Applicant KES. 4,000,000. 00. (b)The issue of costs is reserved upon compliance with (a) above.
2. The Respondent being dissatisfied with the orders has now evinced his intention to appeal against the ruling and order. In that regard, he has now filed the Notice of Motion dated February 21, 2022made, inter alia, under Order 42 rule 6 of the Civil Procedure Rules seeking an order of stay of execution pending the hearing and determination of the intended appeal. The application is supported by the Respondent’s affidavit sworn on February 21, 2022. It is opposed by the Applicant through her affidavit sworn on March 9, 2022.
3. When the application came up for hearing, the parties agreed in principle that a stay ought to be granted but the terms of the security was the issue in dispute. The parties could not agree on whether the decretal sum should be deposited in a bank following Islamic principles of banking which do not charge interest. As the parties were unable to agree, I am left with the unenviable task of the coming up with an appropriate order. In my view, an agreement is still in the parties’ hands.
4. I allow the Notice of Motion dated February 21, 2022on the following terms:a.An order of stay of execution of the ruling and decree be and is hereby granted pending hearing and determination of the intended appeal on terms hereunder.b.The Respondent shall provide security in the form of a Bank Guarantee for KES. 4,500,000. 00 from a reputable bank to be agreed upon within 30 days from the date hereof.c.In default of such agreement, the Respondent shall deposit the said KES. 4,500,000. 00 in court.d.In default of the conditions set out above, the order of stay shall lapse and the Applicant shall be at liberty to proceed with execution.e.This order should remain in force for a period of one (1) year unless extended varied and/or set aside by this court or the Court of Appeal.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY 2022. D. S. MAJANJAJUDGECourt of Assistant: Mr M. OnyangoMr Mbaji instructed by Igeria and Ngugi Advocates for the ApplicantMr Ogunde instructed by Walker Kontos Advocates for the Respondent.