[2024] KEHC 901 (KLR)
The court found that both parties agreed in principle to a stay of execution pending appeal, but disagreed on the form of security. Since the appeal was only against the quantum of damages, and the appellant conceded liability for soft tissue injuries, the court exercised its discretion to grant a conditional stay....
Source-derived case information.
- Citation
- [2024] KEHC 901 (KLR)
- Parties
- Appellant: Vincent Paul Otieno Osienya; Respondent: Winny Bentah Machma Wamalwa
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E160 of 2023
- Procedural Posture
- Civil Appeal / Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition; application otherwise spent.
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal on Quantum, Decretal Sum, Order 42 Rule 6, Conditional Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Paul Otieno Osienya
Appellant
Winny Bentah Machma Wamalwa
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the lower court's decree pending appeal.
- 2 What form of security for due performance should be imposed as a condition for stay.
Ratio Decidendi
The court found that both parties agreed in principle to a stay of execution pending appeal, but disagreed on the form of security. Since the appeal was only against the quantum of damages, and the appellant conceded liability for soft tissue injuries, the court exercised its discretion to grant a conditional stay. The appellant was ordered to pay Kshs. 300,000 to the respondent within 21 days as part of the decretal sum, and to deposit the balance of the decretal sum and taxed costs in a joint interest-earning account operated by both parties' advocates within 30 days. This arrangement was deemed to balance the appellant's right to appeal and the respondent's right to the fruits of...
Court Disposition
Stay of execution granted on condition; application otherwise spent.
Orders
- Stay of execution of decree in Kisumu CMCC No. 157 of 2020 granted pending appeal, conditional upon appellant paying Kshs. 300,000 to respondent within 21 days.
- Balance of decretal sum and taxed costs to be deposited in a joint interest-earning account in the names of both parties' advocates within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
Osienya v Wamalwa (Civil Appeal E160 of 2023) [2024] KEHC 901 (KLR) (5 February 2024) (Ruling)
Neutral citation: [2024] KEHC 901 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E160 of 2023
RE Aburili, J
February 5, 2024
Between
Vincent Paul Otieno Osienya
Appellant
and
Winny Bentah Machma Wamalwa
Respondent
Ruling
1. The application for determination is whether this court should grant a stay of execution of decree issued in the lower court pending the hearing and determination of this appeal. Both parties’ counsel are amenable to the court granting the Appellant herein an order of stay of execution of decree in Kisumu Chief Magistrate’s Civil Case No. 157 of 2020 determination of this appeal. The stay, however, is conditional upon the Appellant depositing security for the due performance of decree as contemplated in Order 42 Rule 6(2) of the Civil Procedure Rules
2. Nonetheless, the parties are not agreeing on what mode of security to be deposited. As the appeal is only against quantum of damages awarded to the Respondent/Decree holder; now that the Appellant contests the injuries suffered by the Respondent, especially the fracture but concedes that the Respondent sustained soft tissue injuries; I make the following order, balancing the interests of the Appellant’s right of appeal which if successful should not be rendered nugatory and the Respondent’s right to enjoy the fruits of his lawfully obtained judgment in the lower court:a.That there is hereby granted to the Appellant herein a stay of execution of decree in Kisumu CMCC No. 157 of 2020 pending the hearing and determination of this appeal conditional upon:_i.The Appellant paying to the Respondent a sum of Kshs.300,000 being part of the decretal sum awarded in the above case within 21 days of today.ii.That the entire balance of the decretal sum together with taxed costs shall be deposited in a joint interest earning account to be opened and operated by both parties’ law firms of Kimondo Gachoka & Company Advocates and Geoffrey O. Okoth & Company Advocates within 30 days of today, in a reputable Commercial Bank acceptable to both parties.b.In default, execution to issue.c.The Appellant to Fastrack the filing of a record of appeal within 30 days of today.d.Costs shall be in the appeal herein.e.The application dated 16th January 2024 is spent.
3. Mention on 28th March 2024 to confirm compliance.
4. Ruling to be typed. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 5TH DAY OF FEBRUARY, 2024R. E. ABURILIJUDGE