[2022] KEHC 9870 (KLR)
The court held that since the trial court had already granted a conditional stay of execution pending appeal, the appellant was not entitled to a further order for stay. The appellant's failure to disclose the existing stay order was material. The application as filed did not seek variation of the security...
Source-derived case information.
- Citation
- [2022] KEHC 9870 (KLR)
- Parties
- Appellant: Merinda Lynda Ojiambo; Respondent: SMEP Microfinance Bank Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E060 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Variation of Security Conditions Pending Appeal
- Outcome
- Application for further stay of execution and variation of security condition dismissed; appellant granted 30 days to provide bank guarantee or deposit decretal amount as security.
- Judges
- FA Ochieng
- Legal Topics
- Stay of Execution, Security for Decree, Variation of Conditions, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Merinda Lynda Ojiambo
Appellant
SMEP Microfinance Bank Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Variation of Security Conditions Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a further order for stay of execution pending appeal when a conditional stay has already been granted.
- 2 Whether the court should vary the condition of security from deposit of decretal amount to deposit of a title deed not owned by the appellant.
Ratio Decidendi
The court held that since the trial court had already granted a conditional stay of execution pending appeal, the appellant was not entitled to a further order for stay. The appellant's failure to disclose the existing stay order was material. The application as filed did not seek variation of the security condition, and the subsequent affidavit could not amend the original application. Even if considered, the proposed security (a title deed not owned by the appellant) was inadequate, as it would be difficult to realize and did not guarantee satisfaction of the decretal amount, especially as the property was not in the appellant's name. The court emphasized that security must be...
Court Disposition
Application for further stay of execution and variation of security condition dismissed; appellant granted 30 days to provide bank guarantee or deposit decretal amount as security.
Orders
- Application dated 21st August 2021 seeking further stay of execution is rejected.
- Proposed variation of security condition to allow deposit of title deed is rejected.
Full Case Text
Judgment text and source record
47 paragraphs
Ojiambo v SMEP Microfinance Bank Limited (Civil Appeal E060 of 2021) [2022] KEHC 9870 (KLR) (15 July 2022) (Ruling)
Neutral citation: [2022] KEHC 9870 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E060 of 2021
FA Ochieng, J
July 15, 2022
Between
Merinda Lynda Ojiambo
Appellant
and
SMEP Microfinance Bank Limited
Respondent
(Being an Appeal against the Judgment/Decree dated 13th May 2021 by the Hon. Linah Akoth – Resident Magistrate in Kisumu CMCC No. 506 of 2018)
Ruling
The Appellant’s application dated 21st August 2021 is for an Order for stay of execution pending the hearing and determination of her appeal.
1. By a Judgment dated 13th May 2021 the trial court ordered the Appellant to pay Kshs 589,000/= together with interest thereon. The learned trial magistrate also ordered the Appellant to pay the costs of the suit.
2. Being aggrieved with the Judgment, the Appellant lodged an appeal at the High Court.
3. Whilst awaiting the hearing and determination of the said appeal, the Appellant filed the application herein, seeking stay of execution.
4. The Respondent opposed the application, firstly because the Appellant had already been granted an order for stay of execution.
5. In the face of the disclosure by the Respondent, the Appellant confirmed that the trial court had, indeed, already granted an order for stay of execution.
6. A perusal of the Ruling delivered by the trial court on 14th July 2021 reveals that execution was stayed until the appeal is heard and determined.
7. The said stay of execution was conditional upon the Appellant depositing the decretal amount in a joint interest-earning account, which would be in the names of the advocates for the 2 parties.
8. In the light of the fact that there was already a conditional stay of execution, the Appellant filed a further affidavit on 28th January 2022, indicating that she was aggrieved by the conditional stay. Therefore, the Appellant was now keen on securing a variation of the conditional stay.
9. The Appellant has urged the Court to vary the orders of the trial court, by substituting the requirement for the deposit of the decretal amount, with an order that the Appellant may deposit the title deed of L.R. NO. Bunyala/Bulemia/4911.
10. Pursuant to Order 42 Rule 6 of the Civil Procedure Rules, it was open to the Appellant to make an application for stay of execution, before the High Court;“…… whether the application for such stay shall have been granted or refused by the court appealed from …….”
11. However, it was incumbent upon the Appellant to disclose to this Court that the trial Court had already granted an order for stay of execution.
12. Instead, the Appellant concealed the fact that there was already in existence, an order in her favour.
13. In principle, when the Appellant had already sought and obtained a stay of execution pending the hearing and determination of her appeal, she did not require another order for stay of execution.
14. By her submissions, the Appellant told this Court thus;“The appellant in this matter seeks a variation of the condition on security as ordered by the lower court to be substituted with an order that the security for the due performance of the decree be the land parcel known as Bunyala/Bulemia/4911 measuring 0. 06 Hectares and valued at Shs 600,000. ”
15. With due respect to the Appellant, the application dated 21st August 2021 did not seek a variation of the condition on the security which the trial court had ordered.
16. As already pointed out herein, the Appellant had, originally, failed to disclose that the trial court had already granted a stay of execution.
17. By filing a further affidavit in which she now indicated her wish to seek a variation of the condition imposed by the trial court, the Appellant cannot be deemed to have amended her application.
18. In my considered opinion, the consideration to be accorded to an application for stay of execution is different from that in which the Court was obliged to accord to an application seeking a variation of the terms upon which an earlier order for stay of execution had been granted.
19. I nonetheless appreciate that the security for the due performance of the decree may come in different forms, such as a Bank Guarantee or Payment into the Court or Deposit in a joint interest-earning Bank Account.
20. Provided that the security was sufficient for the due performance of the decree, the Court may allow the Appellant to provide it in such a format as the Court deems appropriate in the circumstances of the particular case.
21. On the one hand, the Appellant ought not to be driven away from the seat of justice by onerous conditions on stay of execution. But on the other hand, the Respondent ought to be adequately protected by a security which is not just adequate but also that which could be realized efficiently.
22. In a money-decree, the easiest security to realize is money deposited either in court or in an account. However, the court would need take into account the circumstances of each case, because hard currency may not necessarily be readily available. In any event, when money was able to continue “working” by generating more, whilst the appeal was being canvassed, that might be advantageous to all the parties, ultimately.
23. The Appellant has offered to deposit the title deed of L.R. NO. Bunyala/BulemiA/4911, in Court. The said title is in the name of Veronica Mary Khabamba. In other words, the property does not belong to the Appellant.
24. I find that the proposed security would pose serious challenges, because it would require considerable legal actions before it could be converted into cash, to pay the decretal amount.
25. Secondly, if the Market Value was Kshs 600,000/= as at 3rd August 2021; it is unknown whether it might be sufficient to settle the decretal amount of Kshs 589,000/=, which continues to attract interest.
26. In the event, I reject the application dated 21st August 2021, to the extent that it sought an order for stay of execution when there is already an order for stay pending appeal.
27. I also reject the proposed variation of the conditions for stay, because the property being offered does not belong to the Appellant.
28. Nonetheless, in order not to drive the Appellant away from the seat of justice; whilst simultaneously providing an even-handed space to the parties herein, I order the Appellant to provide either;(a)A Bank Guarantee for the Decretal Amount, or(b)The Decretal Amount, which would be held in a joint interest-earning Account in the names of the advocates for the parties herein.
29. The Appellant has 30 days to meet either of the conditions; whereupon the execution shall stand stayed until the appeal was heard and determined.
30. The costs of the application shall abide the outcome of the appeal; so that the successful party will also be deemed to have been awarded the said costs. I so order because the outcome of the appeal would constitute the real assessment on the issue as to whether or not there ought to have been a stay of execution in the first instance.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF JULY 2022FRED A. OCHIENGJUDGE