[2011] KEHC 1706 (KLR)
The court found that the appellants had already fulfilled the major condition for the grant of a stay of execution by depositing the decretal sum in court. As such, there was no need to discuss the other conditions for granting a stay. The application for stay was therefore allowed, and the appellants were directed...
Source-derived case information.
- Citation
- [2011] KEHC 1706 (KLR)
- Parties
- Appellant: Pemuga Auto Spares; Appellant: Barclays Bank of Kenya Ltd; Respondent: Margaret Korir Tagi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 288 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application for stay of execution pending appeal allowed
- Judges
- MJA Emukule
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pemuga Auto Spares
Appellant
Barclays Bank of Kenya Ltd
Appellant
Margaret Korir Tagi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to an order of stay of execution pending appeal.
- 2 Whether the deposit of the decretal sum satisfies the conditions for stay under Order 42 Rule 4(2) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellants had already fulfilled the major condition for the grant of a stay of execution by depositing the decretal sum in court. As such, there was no need to discuss the other conditions for granting a stay. The application for stay was therefore allowed, and the appellants were directed to prepare and submit a Record of Appeal within sixty days.
Court Disposition
application for stay of execution pending appeal allowed
Orders
- Stay of execution granted pending appeal.
- Appellants to prepare and submit a Record of Appeal within sixty (60) days for perusal by a Judge before admission for hearing or summary rejection.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 288 OF 2010
PEMUGA AUTO SPARES………………………………........…….1ST APPELLANT/APPLICANT
BARCLAYS BANK OF KENYA LTD……………...............………..2ND APPELLANT/APPLICANT
VERSUS
MARGARET KORIR TAGI……………………………………..…………………..RESPONDENT
RULING
This Ruling concerns and relates to an application by way of a Notice of Motion dated 10th February 2011 and filed on 11th February 2011 in which the Appellants/Applicants sought an order of stay pending appeal.
Following an ex parte hearing, I directed the Applicants to deposit the decretal sum of Ksh 1,434,725/= into court, which sum was duly deposited into court under Deposit Receipt No. B527413 of 24th February 2011.
The conditions for stay of execution are prescribed by Order 42, Rule 4(2) of the Civil Procedure Rules 2010. They are that -
(1) the court is satisfied that substantial loss may result to the applicant unless the order is made,
(2) the application has been made without unreasonable delay, and
(3) such security as the court orders for the due performance of such decree or order as may immediately be binding on him has been given by the applicant.
As the Applicant has already fulfilled the major condition for the grant of a stay, that is, deposited the decretal sum in court, there is no cause for discussing the other tests for granting a stay of execution.
I therefore allow the application in terms of prayer 4 thereof, and direct the Appellant do prepare and submit a Record of Appeal within the next sixty (60) days for perusal by a Judge before admission for hearing or summary rejection thereof. Costs hereof will be in the cause.
There shall be orders accordingly.
Dated, signed and delivered at Nakuru this 3rd day of June 2011
M. J. ANYARA EMUKULE
JUDGE