[2004] KEHC 731 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL 239 OF 2004

NJUCA CONSOLIDATED LTD …………………………………… APPELLANT

VERSUS

DENMUS OIGORO OONGE ………………………..…………….. RESPONDENT

RULING

The applicant seeks for stay of execution of judgment and decree in KISII CM CC.NO.451 of 2004.

Judgment was entered against the applicant/appellant in the lower court on 11th August 2004. The appellant being dissatisfied filed a memorandum of appeal. He also made an application before the trial court for stay of execution. The court in granting a stay of execution ordered the applicant to deposit half of the decretal amount in an interest earning account in joint names of the advocates for the parties and the other half to be deposited with the advocate for the respondent. It was submitted that these conditions were harsh and that is why he has filed this application. Further it was submitted that appellant cannot be able to raise the whole of the decretal sum and he sought to be allowed to deposit half of the decretal sum. Court was told that the appeal has high chances of success.

Mr. Nyasimi opposed the application and submitted that the lower court gave conditions for stay and there is no good reason for the court to interfere with the discretion of the magistrate. Further he submitted that the appellant can afford to deposit the whole of the decretal sum. The appeal, he said, has nil chances of success.

This application is not an appeal against the magistrate’s order of stay. It is a fresh application. Order 41 rules 4(1) CPR clearly provides that a party can make an application for a stay in the appellate court is not withstanding that he had made another application before the court from which the decision is appealed from. It does not matter if the application for stay is allowed or rejected in that court. The application therefore had a right to make his application in this court even if he had made another before the trial court.

The applicant has already filed an appeal and submits that it has high chances of success. He deponed that the Respondent may not be able to refund the money if the appeal succeeds. Apparently the Respondent was his employee and he did not seriously counter that averment in his replying affidavit.

I therefore concur that there is need to issue a stay of execution until the appeal is heard and determined and I order so.

The other issue is that of condition to such stay. In the lower court it was ordered that ½ of decretal sum be deposited with counsel for the Respondent and the other in an interest earning account. I don’t see any logic in ordering half of the sum to be deposited with the advocate for the Respondent. He is not a bank and at the end of it all he cannot give interest on that amount. Again, with all due respects, the advocate is only a human being and anything can happen before the appeal is heard and determined. Unless there are very compelling reasons any deposit should be made in a bank or in court.

Appellant submitted that due to economic problems he has a problem of cash flow and asked to be allowed to deposit half of decretal amount.

Indeed as Mr. Nyasimi submitted it is the court which gives conditions for stay of execution. It is however not wrong for a party to submit and give court its position. The objective of court asking for surety is not supposed to be oppressive. It is to ensure that the decree will be satisfied if the appeal fails. The appellant is said to be a construction company.

It has not been said that they are going out of business in any foreseeable future. I therefore direct that the appellant do deposit half of the decretal sum in an interest earning account in joint names of both Advocates within the next 30 days.

As agreed this order applies to HCCC.NO.240 of 2004.

Dated at Kisii this 18th November 2004.

KABURU BAUNI

JUDGE

18/11/04

Mr. Nyasimi for the Respondent

N/A for Applicant.