[2007] KEHC 2296 (KLR)
The court found that the applicant had already acknowledged the risk of irreparable loss due to the substantial sum and accruing interest, but this loss is not irreparable because the respondent, being a reputable bank, would have no difficulty refunding the money if the appeal succeeds. The court held that the...
Source-derived case information.
- Citation
- [2007] KEHC 2296 (KLR)
- Parties
- Appellant: Patrick Kiplagat Kiptanui; Respondent: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 340 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Stay of Execution
- Outcome
- application dismissed
- Judges
- JM Khamoni
- Legal Topics
- Stay of Execution, Money Decree, Irreparable Loss, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kiplagat Kiptanui
Appellant
National Bank of Kenya
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Stay of Execution
Legal Issues
- 1 Whether a stay of execution should be granted in respect of a money decree against the applicant pending appeal.
- 2 Whether the applicant will suffer irreparable loss if the stay is not granted.
Ratio Decidendi
The court found that the applicant had already acknowledged the risk of irreparable loss due to the substantial sum and accruing interest, but this loss is not irreparable because the respondent, being a reputable bank, would have no difficulty refunding the money if the appeal succeeds. The court held that the applicant failed to demonstrate sufficient grounds for granting a stay of execution, as the risk of loss is mitigated by the respondent's ability to repay. Therefore, the application for stay was dismissed, and the applicant was ordered to pay the costs of the application.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 30th May 2003 is dismissed.
- The applicant to pay costs of this application to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 340 of 2007
PATRICK KIPLAGAT KIPTANUI …......APPELLANT/APPLICANT
Versus
NATIONAL BANK OF KENYA………...............……RESPONDENT
R U L I N G
From what has been brought to my attention during the hearing of this Notice of Motion dated 30th May 2003, the same be and is hereby dismissed for the following reasons:
This is a money decree where the decree holder is a bank of National repute. In the circumstances of the case therefore, I do not see how a stay will be good and fair to the Applicant if in the end he loses the appeal in view of the fact that the interest of 7% ordered will keep on increasing the total sum to be paid. He already says the total sum to be paid to-day is substantial and will make the Applicant suffer irreparable loss even though the Respondent is a person who will have no difficulty refunding the money if the appeal is a success. That is irreparable loss already, to the Applicant to-day according to his application. How about if he will be made to pay that to-day’s total plus the addition which will result from to-day to a date after determination of the appeal in case the appeal is dismissed? The Appellant/Applicant does not want to say anything – and I do not see any other order better for the Applicant than the order I have made above. The Applicant to pay costs of this application to the Respondent.
Dated and delivered at Nairobi this 21st day of June 2007.
J.M. KHAMONI
JUDGE