[2024] KEHC 2104 (KLR)
The court found that the applicant had partially complied with the requirements for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. The application was filed promptly, within 30 days of the impugned judgment. The applicant demonstrated a risk of substantial loss if the decretal sum was paid...
Source-derived case information.
- Citation
- [2024] KEHC 2104 (KLR)
- Parties
- Applicant: Bosco Kariuki Okemwa & another; Respondent: Gabriel Ooko Opondo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E660 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on conditions.
- Judges
- JN Mulwa
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Appeal Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bosco Kariuki Okemwa & another
Applicant
Gabriel Ooko Opondo
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 2 Whether substantial loss may occur to the applicant if stay is not granted.
- 3 Whether adequate security for the due performance of the decree has been offered.
Ratio Decidendi
The court found that the applicant had partially complied with the requirements for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. The application was filed promptly, within 30 days of the impugned judgment. The applicant demonstrated a risk of substantial loss if the decretal sum was paid out and the appeal later succeeded, as recovery could be prejudicially difficult. Although the applicant did not specify the bank for the guarantee, willingness to secure the decretal sum was shown. The court therefore granted a conditional stay of execution, requiring part payment to the respondent and deposit of the balance in a joint interest-earning account, with timelines...
Court Disposition
Application for stay of execution pending appeal allowed on conditions.
Orders
- An order of stay of execution pending hearing and determination of the appeal is granted subject to the applicant paying Kshs. 600,000 to the respondent through his advocates within 30 days.
- The balance of the decretal sum to be deposited in a joint interest earning account in the parties' advocates' names within 45 days.
Full Case Text
Judgment text and source record
24 paragraphs
Okemwa & another v Opondo (Civil Appeal E660 of 2023) [2024] KEHC 2104 (KLR) (Civ) (29 February 2024) (Ruling)
Neutral citation: [2024] KEHC 2104 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E660 of 2023
JN Mulwa, J
February 29, 2024
Between
Bosco Kariuki Okemwa & another
Applicant
and
Gabriel Ooko Opondo
Respondent
Ruling
Ruling on Motion Dated 26/07/2023 1. I have considered the unopposed motion and prayers sought.
2. Judgment sought to be stayed was delivered on 10/07/2023 in CMCC No. E12243 of 2021 in favour of the Respondent in the sum of Kshs. 1,305,550/= with costs and interest.
3. Reasons for the Application for stay of execution pending hearing and determination of the Appeal – record yet to be filed are stated that if the said sum is paid to the Respondent and if the Appeal succeeds, repayment to the Applicant may be difficult which would be prejudicial to the Applicant. The Applicants are ready and willing to secure the decretal sum by a deposit by a bank guarantee in favour of the Respondent. I note that the Applicant has not stated the bank from which a guarantee may be obtained.
4. I have perused the Memorandum of Appeal dated 17/07/2023 to find out if the Appeal has high chances of success.
5. The Applicant has partially complied with conditions for stay of execution as provided under Order 42 Rule 6 (2) of the Civil Procedure Rules that the court must be satisfied that:-a.Substantial loss may occasion to the Applicant if stay is not granted.b.Security for the due performance of the decree is offered.c.Application is filed without undue delay
6. The impugned judgment was delivered on 10/07/2023. This Application dated 26/07/2023 was filed in less than 30 days.
7. On substantial loss, the Applicants claims that the award of damages for pain and suffering following injuries in an accident is excessive and ought to be reduced. I have looked at the impugned judgment. The trial court held the Applicant 100% liable for the accident for the injuries the Respondent sustained.
8. In the end I find the Application merited, and allow the same on the following terms;1. An order of stay of execution pending hearing and determination of the Appeal is granted subject to the Applicant paying to the Respondent through his Advocates Waiganjo Wachira & Co. Advocates Kshs. 600,000/= within 30 days of this ruling2. The balance of the decretal sum to be deposited in a joint interest earning account in the parties Advocates names within 45 days.3. The record of appeal to be filed within 60 days.4. Mention before DR for directions on the Appeal on 25/04/20245. If order No. (1) and (2) above are not complied with, the stay orders shall lapse automatically.Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF FEBRUARY, 2024. J. N. MULWAJUDGE