[2018] KEHC 8927 (KLR)
The court found that the application for stay of execution was filed promptly following the tribunal's ruling. While the applicant's affidavit focused on the merits of the appeal and did not provide evidence of substantial loss or security, the applicant offered security in the written submissions, specifically a...
Source-derived case information.
- Citation
- [2018] KEHC 8927 (KLR)
- Parties
- Applicant: Ndombi Tom Wachakana Osolika; Respondent: The Disciplinary Committee of the Law Society of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 532 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution allowed on condition of security.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndombi Tom Wachakana Osolika
Applicant
The Disciplinary Committee of the Law Society of Kenya
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the tribunal orders pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the applicant has provided adequate security for the due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was filed promptly following the tribunal's ruling. While the applicant's affidavit focused on the merits of the appeal and did not provide evidence of substantial loss or security, the applicant offered security in the written submissions, specifically a professional indemnity cover of Ksh.20 million. To balance the interests of both parties, the court granted the stay of execution on the condition that the applicant deposits Ksh.20,000,000 or provides equivalent security in the form of a bank guarantee or property within 30 days. The court thus exercised its discretion to grant a conditional stay, emphasizing the need for...
Court Disposition
Application for stay of execution allowed on condition of security.
Orders
- The applicant shall deposit in court the sum of Ksh.20,000,000 or provide security for the same in the form of a bank guarantee or property equal to the said sum within 30 days from the date hereof.
- Costs in cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 532 OF 2016
NDOMBI TOM WACHAKANA OSOLIKA...............................APPLICANT
VERSUS
THE DISCIPLINARY COMMITTEE OF
THE LAW SOCIETY OF KENYA.........................................RESPONDENT
RULING
1. The Notice of Motion application dated 11th August, 2016 seeks orders that “there be a stay of execution of the tribunal orders of 1st August, 2016 pending the hearing of this application/appeal.”
2. The application is predicated on the grounds stated therein and is supported by the affidavit and a further affidavit sworn by the Applicant. The Applicant stated that there were errors made in the ruling made by the tribunal and stated that he has an arguable appeal.
3. The application is opposed. It is stated in the replying affidavit that the appeal lacks merits and that the Applicant is not entitled to an order of stay of execution. It is further stated that the Applicant should provide security for the entire judgment amount.
4. The application was canvassed by way of written submissions. I have considered the said submissions.
5. Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides as follows:
“No order for stay of execution shall be made under sub-rule (1) unless –
a. The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
b. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
6. The ruling of the tribunal that is the subject of the appeal was delivered on 1st August, 2016. The application under consideration was filed on 11th August, 2016. The application was filed timeously.
7. The affidavit in support of the application has mainly dealt with the merits of the Appeal. There is no evidence of the substantial loss to be suffered nor any security offered for the due performance of the decree. However, the Applicant has offered security in the written submissions and stated that he has a professional indemnity cover of Ksh.20 Million with Heritage Insurance Company.
8. To balance the interests of both parties herein, I allow the application on condition that the Applicant do deposit in court the sum of Ksh.20,000,000/= or security for the same in the form of bank guarantee or property equal to the said sum within 30 days from the date hereof. Costs in cause.
Date, signed and delivered at Nairobi this 29th day of January 2018
B. THURANIRA JADEN
JUDGE