[2003] KEHC 849 (KLR)
The court found that both parties are secured since the entire decretal sum has been deposited in court. The appellant's concern about recovering the decretal sum from the respondent if paid out was not controverted. The court determined that the interests of justice require that the decretal sum remain in court...
Source-derived case information.
- Citation
- [2003] KEHC 849 (KLR)
- Parties
- Appellant: Oserian Development Company Ltd; Respondent: Simon Mutuku Wambua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 65 of 1999
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted on condition that the decretal sum remains deposited in court pending appeal.
- Judges
- ARM Visram
- Legal Topics
- Stay of Execution, Appeals Process, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oserian Development Company Ltd
Appellant
Simon Mutuku Wambua
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the intended appeal.
- 2 Whether the deposit of the decretal sum in court is sufficient security for the parties.
Ratio Decidendi
The court found that both parties are secured since the entire decretal sum has been deposited in court. The appellant's concern about recovering the decretal sum from the respondent if paid out was not controverted. The court determined that the interests of justice require that the decretal sum remain in court pending the determination of the appeal, thereby granting the stay of execution on the same conditions previously imposed. The challenge to the Notice of Appeal was deemed a matter for the Court of Appeal and not for determination at this stage.
Court Disposition
Application for stay of execution granted on condition that the decretal sum remains deposited in court pending appeal.
Orders
- Stay of execution of the decree is granted pending the hearing and determination of the intended appeal to the Court of Appeal.
- The decretal sum shall be held in court pending the determination of the appeal.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL APPEAL NO. 65 OF 1999
OSERIAN DEVELOPMENT COMPANY LTD ………………...APPELLANT
VERSUS
SIMON MUTUKU WAMBUA ………………………………..RESPONDENT
RULING
This is an application under Order XLI Rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap 21). In it the Appellant seeks, in the main the following order:
“2. That this Honourable Court be pleased to order a stay of execution of the decree pursuant to the Honourable Court’s ruling delivered on the 5 th March, 2003 pending the hearing and determination of the intended appeal to the Court of Appeal.”
The Application was brought under Certificate of Urgency. At the time of certifying the application, I required the Appellant to deposit the entire decretal amount in Court which I was informed by Mr. Mahida for the Appellant that the same had been so deposited. Both parties are secured. If the Appellant should fail, the Respondent will collect the decretal sum from the Court. The Appellant is worried that if the decretal sum is paid to the Respondent, it may not be able to recover it without difficulty from the Respondent. That was not controverted. The Respondent’s Advocate also challenged the Notice of Appeal filed herein but I think that is a matter that should be left for the determination of the Court of Appeal. Considering these matters, I allow the Appellant’s application for stay on the same condition imposed by me on March 13, 2003 save that the said decretal sum shall be held in Court pending the determination of the Appeal.
Dated and Delivered at Nakuru this 2nd day of July, 2003.
ALNASHIR VISRAM
JUDGE