[2024] KEHC 9028 (KLR)
The court found that the application for stay of execution was filed without unreasonable delay, though it was borderline. The applicants demonstrated that they may suffer substantial loss if the decretal amount is paid out and the respondent is unable to refund it should the appeal succeed. The court exercised its...
Source-derived case information.
- Citation
- [2024] KEHC 9028 (KLR)
- Parties
- Applicant: Wilson Wachira Mwangi; Applicant: Beaverline Manchester Travellers Sacco Limited; Respondent: GUK (minor suing through next Friend and Mother MWK)
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E069 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure, Substantial Loss, Delay in Filing, Conditions for Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Wachira Mwangi
Applicant
Beaverline Manchester Travellers Sacco Limited
Applicant
GUK (minor suing through next Friend and Mother MWK)
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the applicants have demonstrated the likelihood of suffering substantial loss if stay is not granted.
- 3 What is the appropriate security for the due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was filed without unreasonable delay, though it was borderline. The applicants demonstrated that they may suffer substantial loss if the decretal amount is paid out and the respondent is unable to refund it should the appeal succeed. The court exercised its discretion to grant stay of execution, but on condition that the entire decretal sum is deposited in a joint interest earning bank account in the names of the parties' advocates within forty days. The court rejected the applicant's offer of a bank guarantee in favour of the respondent's proposal for a cash deposit as more appropriate security in the circumstances.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- Stay of execution of judgment/decree in Voi CMCC No. E169 of 2022 pending hearing and determination of Voi HCCA No. E069 of 2023.
- Stay is conditional upon the applicant depositing the entire decretal amount of Kshs. 242,550 in a joint interest earning bank account in the names of the parties' advocates within forty days.
Full Case Text
Judgment text and source record
30 paragraphs
Mwangi & another v GUK (minor suing through next friend and Mother MWK) (Civil Appeal E069 of 2023) [2024] KEHC 9028 (KLR) (17 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9028 (KLR)
Republic of Kenya
In the High Court at Voi
Civil Appeal E069 of 2023
GMA Dulu, J
July 17, 2024
Between
Wilson Wachira Mwangi
1st Applicant
Beaverline Manchester Travellers Sacco Limited
2nd Applicant
and
GUK (minor suing through next Friend and Mother MWK)
Respondent
Ruling
1. Before me is an application dated 25th March 2024, and another application dated 29th April 2024 brought by way of Notice of Motion under Section 3, 3A of the Civil Procedure Act (Cap.21), and Order 42 Rule 6, Order 50 Rule 5, and Order 51 Rules 1 & 3 and Order 22 Rule 22 of the Civil Procedure Rules.
2. The application was filed through counsel M/s Kimondo Gachoka & Company Advocates and seeks the following orders:-1. (Spent).2. (Spent).3. That the court be pleased to grant a stay of execution of the judgment/decree in Voi Civil Case No. E169 of 2022 delivered on 11th September 2023 pending the hearing and full determination of the appeal in Voi HCCA No. E069 of 2023. 4.That upon grant of prayer 3 above, the court be please to order that the applicant does provide sufficient security in the form of a sustainable Bank Guarantee to secure the judgment herein of Kshs. 242,550/=5. That costs of the application be in the cause.
3. Since two applications were filed on the same subject matter, and submissions were filed on the application dated 29th April 2024, I dismiss the application dated 25th March 2024.
4. The application has grounds on the face of the Notice of Motion that judgment had been delivered on 11th September 2023 in Voi Civil Case No. E169 of 2022 and an appeal had already been filed; that the appeal is against a substantial amount; that if stay orders are not granted the appeal may be rendered nugatory as the respondent might not be able to repay the decretal amount.
5. The application was filed with an affidavit sworn by Wilson Wachira Mwangi one of the appellants amplifying the grounds of the application.
6. The application is opposed through a replying affidavit sworn by William Ochieng Jomo the respondent deponing that the entire decretal amount be deposited in a joint interest earning account within 30 days.
7. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Kimondo Gachoka & Company Advocates for the applicant, as well as the submissions filed by Njoroge Mwangi & Company Advocates for the respondent.
8. I note that the respondent’s counsel submitted that if the application is allowed, then the decretal amount be deposited in a joint interest earning account within 30 days.
9. This being an application for stay of execution pending determination of appeal, it is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules.
10. In my view, this application was filed without unreasonable delay though it was filed on 29th April 2024 after appeal was filed on 8th December 2023. However, I have to point out that this is a borderline case on delay, and the application was only saved by the fact that appeal was filed in good time.
11. As to whether the applicant is likely to suffer substantial loss if the stay orders sought are not granted, in my view, if the entire decretal amount is paid out to the respondent, the applicant might suffer substantial loss because the respondent might not be in a position to repay the amount.
12. As for provision of security, the applicant has offered to provide a bank guarantee. However, the respondent has proposed that the entire decretal amount be paid into a joint interest earning bank account in the names of the Advocates. In my view, it is more appropriate herein for the applicants to pay the decretal sum into a joint interest earning saving account.
13. Consequently, I allow the application and order as follows:-i.This court grants stay of execution of judgment/decree in Voi CMCC No. E169 of 2022 delivered on 11th September 2023 pending hearing and full determination of Voi HCCA No. E069 of 2023ii.The above stay of execution orders are subject to the condition that the applicant deposits the entire decretal amount Kshs. 242,550/= in a joint interest earning bank account in the names of the counsel for the parties within fourty (40) days from today.iii.The costs of the application will abide the determination of the appeal.
DATED, SIGNED AND DELIVERED THIS 17TH DAY OF JULY 2024 IN OPEN COURT AT VOI VIRTUALLY.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsMr. Ndolo for the applicantsNo appearance for respondents