[2010] KEHC 1578 (KLR)
The court found that, due to the disappearance of the lower court proceedings from the file, it could not verify the parties' contentions regarding the consent decree or the propriety of the attachment. In the interests of justice and to balance the parties' positions, the court allowed the application for stay of...
Source-derived case information.
- Citation
- [2010] KEHC 1578 (KLR)
- Parties
- Appellant: Paul Gathara; Respondent: Atanasio Muruiki Kinyua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 146 of 2009
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Attachment of Goods, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Paul Gathara
Appellant
Atanasio Muruiki Kinyua
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the appeal.
- 2 Whether the attached goods should be released to the appellant upon deposit of security.
- 3 Whether the appeal is frivolous and intended to delay execution.
Ratio Decidendi
The court found that, due to the disappearance of the lower court proceedings from the file, it could not verify the parties' contentions regarding the consent decree or the propriety of the attachment. In the interests of justice and to balance the parties' positions, the court allowed the application for stay of execution on condition that the appellant deposits Kshs. 20,000 in court, being approximately half of the costs in the case. The attached goods would be released upon such deposit within 30 days, failing which execution would proceed. This conditional stay ensures that the respondent's interests are protected while allowing the appellant to pursue his appeal.
Court Disposition
Conditional stay of execution granted.
Orders
- Appellant to deposit Kshs. 20,000 in court within 30 days.
- Attached goods to be released upon deposit of the amount.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Appeal 146 of 2009
PAUL GATHARA………..…………………….…APPELLANT
VERSUS
ATANASIO MURUIKI KINYUA………….….RESPONDENT
RULING
In his Notice of Motion dated 8th July 2009 and brought under Order 41 Rule 4(1) and (6) of the Civil Procedure Rules as well as Section 3A of the Civil Procedure Act the appellant sought a stay of execution of the lower court decree until this appeal is heard and determined. He obtained an ex-parte of stay but before serving it his goods were attached. He returned to court with Chamber Summons dated 19th November 2009 brought under Section 3 of the Civil Procedure Act and sought an order compelling the court broker to release his attached goods. He argues that if stay is not granted he will suffer great loss as the attached goods belong to his customers.
The respondent cannot hear of that. In his replying affidavit and the submissions by his counsel, he contends that the lower court decree was by consent but the appellant refused to pay the costs of the suit as ordered. The attachment of his goods is therefore in execution of order for costs. He says this is a frivolous appeal intended to delay the finalization of this matter.
The proceedings in the lower court have mysteriously disappeared from the court filed. I cannot therefore verify either of the parties’ contentions. In the circumstances I allow this application on condition that the appellant deposits in court a sum of Kshs.20,000/- being approximately a half of the costs in that case. His attached goods shall be released upon deposit of that amount within 30 days failing which the execution shall proceed. The costs of this application shall be costs in the appeal.
DATED and DELIVERED this 17th day of June, 2010.
D. K. MARAGA
JUDGE.