[2023] KEHC 20249 (KLR)

[2023] KEHC 20249 (KLR)

The court found that the applicant had satisfied all three parameters under Order 42 Rule 6 of the Civil Procedure Rules: (1) substantial loss was established as the respondent did not demonstrate ability to refund the decretal sum if the appeal succeeded; (2) the application was made without unreasonable delay, being filed promptly after the dismissal of the application to set aside the ex-parte judgment; and (3) the applicant was willing to provide security, and the court deemed the deposit of the full decretal sum in a joint interest earning account as adequate security. The court further held that the grounds of appeal were arguable and that failure to grant stay would render the...

Citation
[2023] KEHC 20249 (KLR)
Parties
Appellant: John Odhiambo Ndiege; Respondent: Sharon Moraa Machome
Court
High Court
Court Station
High Court at Nyamira
Jurisdiction
Kenya
Judgment Date
13 July 2023
Case Number
Civil Appeal E043 of 2022
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
Application allowed with conditions.
Judges
WA Okwany
Legal Topics
Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Rights, Ex Parte Judgment, Timeliness of Application
Source Language
English
Civil Procedure Stay of Execution Security for Due Performance Substantial Loss Appeal Rights Ex Parte Judgment Timeliness of Application

Case Brief

Summary, issues, holding and outcome

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Parties

John Odhiambo Ndiege

Appellant

Sharon Moraa Machome

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
  2. 2 Whether the applicant will suffer substantial loss if stay is not granted.
  3. 3 Whether the application was made without unreasonable delay.

Ratio Decidendi

The court found that the applicant had satisfied all three parameters under Order 42 Rule 6 of the Civil Procedure Rules: (1) substantial loss was established as the respondent did not demonstrate ability to refund the decretal sum if the appeal succeeded; (2) the application was made without unreasonable delay, being filed promptly after the dismissal of the application to set aside the ex-parte judgment; and (3) the applicant was willing to provide security, and the court deemed the deposit of the full decretal sum in a joint interest earning account as adequate security. The court further held that the grounds of appeal were arguable and that failure to grant stay would render the...

Court Disposition

Application allowed with conditions.

Orders

  • The applicant shall within 30 days from the date of the ruling deposit the full decretal sum in Nyamira CMCC No 181 of 2021 in a joint interest earning account to be held in a bank of repute in the names of counsel for both parties.
  • In the event of failure to comply with the deposit order, the stay orders shall automatically stand vacated and the respondent will be at liberty to proceed with execution.