[2023] KEHC 3320 (KLR)
The court found that the applicants had lodged a Notice of Appeal and made the application for stay without delay. The court was persuaded that the applicants were likely to suffer substantial loss if the stay was not granted, as the decretal sum could dissipate before the appeal is heard. The court held that the...
Source-derived case information.
- Citation
- [2023] KEHC 3320 (KLR)
- Parties
- Applicant: Bob Kephas Otieno; Applicant: Eveline Awino Ogutu t/a Nyangume Enterprise; Respondent: Ethics & Anti-Corruption Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Civil Suit 4 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition of security for the decretal sum.
- Judges
- EN Maina
- Legal Topics
- Stay of Execution, Appeals Process, Security for Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bob Kephas Otieno
Applicant
Eveline Awino Ogutu t/a Nyangume Enterprise
Applicant
Ethics & Anti-Corruption Commission
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the applicants will suffer substantial loss if stay is not granted.
- 3 Whether security for due performance of the decree has been provided.
Ratio Decidendi
The court found that the applicants had lodged a Notice of Appeal and made the application for stay without delay. The court was persuaded that the applicants were likely to suffer substantial loss if the stay was not granted, as the decretal sum could dissipate before the appeal is heard. The court held that the issue of the appeal's merits is for the appellate court. The court further held that, in compliance with Rule 6(2)(b), an order for stay would only be granted on condition that the entire decretal sum is deposited in court or in an interest-earning joint account within thirty days. Costs of the application were awarded to the respondent.
Court Disposition
Application for stay of execution pending appeal allowed on condition of security for the decretal sum.
Orders
- Stay of execution pending appeal is granted on condition that the entire decretal sum is deposited in court or in an interest-earning account in the joint names of counsel for the parties within thirty days.
- Costs of the application shall be borne by the applicants.
Full Case Text
Judgment text and source record
27 paragraphs
Otieno & another v Ethics & Anti-Corruption Commission (Anti-Corruption and Economic Crimes Civil Suit 4 of 2018) [2023] KEHC 3320 (KLR) (Anti-Corruption and Economic Crimes) (20 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3320 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Anti-Corruption and Economic Crimes
Anti-Corruption and Economic Crimes Civil Suit 4 of 2018
EN Maina, J
April 20, 2023
Between
Bob Kephas Otieno
1st Applicant
Eveline Awino Ogutu t/a Nyangume Enterprise
2nd Applicant
and
Ethics & Anti-Corruption Commission
Respondent
Ruling
1. Before me is the Notice of Motion dated March 6, 2023 by which the Defendants/Applicants are seeking a stay of execution of the judgement delivered herein by this court on March 2, 2023 together with all consequential orders thereto.
2. The gist of the application is that the Defendants/Applicants being aggrieved have preferred an appeal against the whole of that judgment. A Notice of Appeal lodged in this court on March 7, 2023 is annexed.
3. The application is opposed on grounds that firstly the Notice of Appeal lodged on March 7, 2023 was not served upon the Respondent and secondly that the main ground of appeal does not disclose 'a prima facie case on appeal' and is 'a delaying tactic meant to prevent the Respondent herein from realizing the fruits of its judgement.' It is also contended that no steps to file the appeal have been taken and further that the Applicants have not demonstrated that they will suffer irreparable harm or loss if the stay is not granted. It is also stated that execution has not commenced.
4. Learned Counsel for the parties canvassed the application through written submissions which I have fully considered.
5. Order 42 Rule 6 (1) of the Civil Procedure Rulesvests this court with discretion to grant an order for stay of execution pending appeal. Order 42 Rule 6(2) sets out the conditions upon which such an order ought to be granted and there is a long line of cases setting out the principles which guide the court in considering whether or not to grant the order.
6. The Notice of Appeal lodged in this court is proof of the intended appeal and it suffices for the purposes of this application. I am also persuaded that the Applicants have satisfied the conditions in sub rule 2 (a) of the Rule 6 in that this application was made without delay and that the applicants are likely to suffer substantial loss given that should this application be refused the decretal sum may have dissipated by the time the appeal is heard. The issue of whether the appeal is likely to succeed or not or is however best left to the appellate court.
7. Rule 6 (2) (b) requires that security for the due performance of such decree or order as may ultimately be binding on the Applicants be given before the order for stay is granted and accordingly an order for stay of execution pending appeal shall issue but only on condition that the entire decretal sum is deposited either in this court or in an interest earning account in the joint names of Counsel for the parties within thirty (30) days of this ruling.
8. The costs of the application shall be borne by the Applicants.
9Orders accordingly.
SIGNED, DATED, AND DELIVERED VIRTUALLY THIS 20TH DAY OF APRIL 2023. E.N. MAINAJUDGE