[2014] KEHC 3717 (KLR)
The court found that the application for stay of execution was made within a reasonable time, as it was brought forty days after the lower court's judgment and after filing the memorandum of appeal. The applicant demonstrated willingness to provide security by offering to deposit Ksh. 1 million in a joint...
Source-derived case information.
- Citation
- [2014] KEHC 3717 (KLR)
- Parties
- Appellant: Joshua Njoroge; Respondent: Mwanasha Hassan Bakari; Respondent: Anne Marie Schyder alias Wirz Anne Marie
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 156 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal, conditional on deposit of security.
- Judges
- GO Shikwe
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Process, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Njoroge
Appellant
Mwanasha Hassan Bakari
Respondent
Anne Marie Schyder alias Wirz Anne Marie
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant has demonstrated willingness to provide security for due performance.
Ratio Decidendi
The court found that the application for stay of execution was made within a reasonable time, as it was brought forty days after the lower court's judgment and after filing the memorandum of appeal. The applicant demonstrated willingness to provide security by offering to deposit Ksh. 1 million in a joint interest-earning account. The court was satisfied that if stay was not granted, the appeal would be rendered nugatory, as execution could proceed and cause irreparable harm to the applicant. The court therefore exercised its discretion to grant a conditional stay of execution pending the hearing and determination of the appeal, subject to the applicant depositing the specified security...
Court Disposition
Stay of execution granted pending appeal, conditional on deposit of security.
Orders
- Stay of execution of the judgment granted pending hearing and determination of the appeal, on condition that the applicants deposit Ksh. 1 million in an interest earning account in the joint names of counsel for the applicants and the respondents within forty-five days.
- Costs of this application to be costs in the intended appeal.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 156 OF 2012
JOSHUA NJOROGE …..................................................….. 1ST APPELANT
VERSUS
MWANASHA HASSAN BAKARI …............................... 1ST RESPONDENT
ANNE MARIE SCHYDER alias
WIRZ ANNE MARIE …....…............................................ 2ND RESPONDENT
RULING
The Notice of Motion application dated the 25th day of September, 2012 and which is expressed to be brought under Section 3 and Section 3A of the Civil Procedure Act, order 42 rules 6, order 51 rules 1 and 3 of the Civil Procedure Rules seeks the following orders:-
A stay of execution of the Judgment obtained herein pending the hearing and determination of the present application.
A stay of execution of the Judgment obtained herein pending the hearing and determination of the applicants appeal against the Judgment delivered on the 15th day of August, 2012.
The grounds are that:-
(a) Judgment was delivered on 15th August, 2012 in favour of the Plaintiff against the Defendant and the thirty (30) days of stay of execution lapsed on 15th September, 2012.
(b) That unless the stay of execution is granted, the applicant is at a risk of execution and the applicants appeal would be rendered nugatory and they would suffer irreparable loss and damage.
(c) That the appeal has high chances of success.
(d) That the Defendant applicant is ready and willing and able to furnish such reasonable security and comply with any Court order that the Court may deem fit.
(e) That the application will not occasion prejudice to the Respondent.
(f) That the application has been done without unreasonable delay.
On the 15th day of August, 2012 Judgment was entered in favour of the plaintiff and against the Defendant on liability.
The plaintiff was to shoulder 30% and the Defendants 70%. Being aggrieved by that decision the Appellants have lodged an appeal.
The application for stay of execution was brought before the Court on 27th September, 2012 some forty (40) days after the lower Courts Judgment.
It cannot be said that there was unreasonable delay.
A memorandum of appeal (which is marked Annexture MK 1) is shown to have been filed on 14th September, 2012.
I am satisfied that if the stay is not granted the applicants appeal would be rendered nugatory. The applicant is wiling to furnish security.
I find that the application has merit and stay of execution is granted pending hearing and determination of the appeal on the condition that the applicants deposit Ksh. 1 million in an interest earning account in the joint names of Counsel for the applicants and the Respondents within forty five (45) days from today.
Costs of this application to be Costs in the intended appeal.
Ruling delivered dated and signed this 18thday of June, 2014.
…....................
M. MUYA
JUDGE
18TH JUNE, 2014
In the presence of:-
Miss Kagumi for the applicants