[2021] KEHC 2028 (KLR)
The court found that the applicant had demonstrated willingness to provide security for the due performance of the decree by offering a bank guarantee from a reputable bank. The respondent did not oppose the stay but sought alternative security. The court exercised its discretion to grant a stay of execution on the...
Source-derived case information.
- Citation
- [2021] KEHC 2028 (KLR)
- Parties
- Applicant: Nelson N. Ndengwa; Respondent: Issa Makokha Misiko (suing as Adm. & legal Rep in the Estate of Jacob Opanda Makokha, deceased)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E004 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- SN Riechi
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Process, Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson N. Ndengwa
Applicant
Issa Makokha Misiko (suing as Adm. & legal Rep in the Estate of Jacob Opanda Makokha, deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and/or decree pending appeal.
- 2 Whether security for due performance of the decree should be provided as a condition for stay.
- 3 Whether the respondent's proposal for deposit of half the decretal amount is appropriate.
Ratio Decidendi
The court found that the applicant had demonstrated willingness to provide security for the due performance of the decree by offering a bank guarantee from a reputable bank. The respondent did not oppose the stay but sought alternative security. The court exercised its discretion to grant a stay of execution on the condition that the applicant executes a bank guarantee for the whole decretal sum and costs within 30 days, failing which the stay would lapse. This approach balances the applicant's right to appeal and the respondent's interest in securing the judgment amount.
Court Disposition
application for stay of execution allowed with conditions
Orders
- The applicant shall execute a bank guarantee for the whole decretal sum and costs within 30 days.
- If the bank guarantee is not executed within 30 days from the date of the ruling, the stay of execution will lapse.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT BUNGOMA
MISCELLANEOUS CIVIL APPLICATION NO. E004 OF 2021
NELSON N. NDENGWA.....................................APPLICANT
VERSUS
ISSA MAKOKHA MISIKO
(suing as the Adm. & legal Rep in the Estate of
JACOB OPANDA MAKOKHA (deceased).......RESPONDENT
RULING
This is a notice of motion dated 29. 1.2021 by the applicant NELSON NDEGWAagainst the Respondent ISSA MAKOKHA MISIKHO suing as administrator of the estate of JACOB OPANDA MAKOKHA (deceased) seeking
1. Spent
2. Spent
3. Spent
4. That this honourable court be pleased to grant stay of execution of the Judgment and/or decree in Bungoma CMCC No. 478 of 2015 pending hearing and determination of the intended Appeal.
The grands for the application are that:
a) That the Applicant being aggrieved with the decision of this Honourable court intends to file an appeal against the judgment of the trial magistrate delivered on 1st December, 2020.
b) That the Applicant contends the liability and quantum awarded was excessive and should execution proceed the Applicant stand to suffer irreparable loss and prejudice as the ability of the plaintiff herein to refund the decretal amount is unknown.
c) That the intended appeal raises triable issues and unless the proceedings herein are stayed this suit stands to be rendered nugatory.
d) That the intended appeal is meritorious with high chances of success.
e) That the Applicant’s insurance is ready, willing and able to provide a bank guarantee form Diamond Trust Bank equal to the due performance of the decree, as security pending the hearing and determination of the appeal.
The application is supported by the affidavit of Kelvin Ngare the legal officer of Direct line Assurance Company, the insurance of motor vehicle Reg. No. KBG 535 V the motor vehicle from which this claims arises. He reiterates the grounds of the application.
Mr. Mukisu for the Respondent did not oppose the application for stay but insisted that the applicant do deposit ½ of the decretal amount in an interest earning account in account of both advocates and the costs be paid in its entirety. By directions of this court, this application was canvassed by way of written submissions. Both parties filed.
I have considered the submissions by counsel. The respondents are not opposing the application for stay but propose that same be granted on condition. The applicant in para 14 of the supporting affidavit have declared their willingness to provide a bank guarantee from Diamond Trust Bank to the amount of the decree.
I therefore allow the application for stay of execution on the following conditions.
1. That the applicant do execute a bank guarantee for the whole decretal s um and costs within 30 days.
2. Bank guarantee is not executed within 30 days from today’s date the stay of execution will lapse.
DATED AT BUNGOMA THIS 16TH OF NOVEMBER, 2021.
S.N RIECHI
JUDGE