[2009] KEHC 63 (KLR)
The court found that it is fair and just to grant the applicant an opportunity to prosecute his appeal, provided that the respondent's interests are secured by an order for security. The court balanced the competing interests by requiring the applicant to deposit a further sum as security and to expedite the appeal...
Source-derived case information.
- Citation
- [2009] KEHC 63 (KLR)
- Parties
- Appellant: Peter Kinyanjui; Respondent: Virginia Waithira Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 50 of 2009
- Procedural Posture
- Civil Appeal / Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on conditions.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Security for Costs, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kinyanjui
Appellant
Virginia Waithira Mwangi
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the respondent's interests can be adequately protected by security for costs.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that it is fair and just to grant the applicant an opportunity to prosecute his appeal, provided that the respondent's interests are secured by an order for security. The court balanced the competing interests by requiring the applicant to deposit a further sum as security and to expedite the appeal process. The stay of execution was therefore granted on strict conditions to ensure both parties are protected.
Court Disposition
Stay of execution granted on conditions.
Orders
- The applicant shall deposit into court a further sum of Kshs.10,000 (in addition to the amount already deposited) within 7 days, and the total sum of Kshs.20,000 to remain in court pending the hearing of the appeal.
- The applicant shall file and serve a record of appeal within 90 days from the date hereof and take all necessary action to facilitate the speedy disposal of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 50 of 2009
PETER KINYANJUI…...……………………….. APPELLANT
VERSUS
VIRGINIA WAITHIRA MWANGI…………...RESPONDENT
R U L I N G
1. Peter Kinyanjui (hereinafter referred to as the applicant), is dissatisfied with the judgment of the Resident Magistrate Thika, delivered in Thika Civil Case No. 68 of 1993. The applicant has lodged an appeal in this court. He now seeks orders of stay of execution pending the hearing of his appeal. The applicant maintains that his appeal which has overwhelming chances of success would be rendered useless unless the orders sought are granted.
2. Virginia Waithira Mwangi who is the respondent to the appeal, objects to this application contending that it has been brought in bad faith and that the applicant has not demonstrated the prejudice if any that he would suffer if the orders are not issued.
3. I have carefully considered this application and the affidavit in support and in reply. I think it is fair and just that the applicant be given an opportunity to ventilate his appeal. On the other hand, the interests of the respondent can easily be secured through an order for security. Accordingly, I grant an order for stay of execution pending appeal on the following conditions: -
(i) The applicant shall deposit into court a further sum of Kshs.10,000/= (in addition to the amount already deposited), within 7 days from today, and the total sum of Kshs.20,000/= to remain in this court pending the hearing of the appeal.
(ii) The applicant shall file and serve a record of appeal within 90 days from the date hereof and take all necessary action to facilitate the speedy disposal of the appeal.
(iii) If the appeal is not disposed off within 12 months from the date hereof, the order for stay of execution shall lapse unless otherwise extended by the court.
Those shall be the orders of this court.
Dated and delivered this 21st day of April, 2009
H. M. OKWENGU
JUDGE
In the absence of: -
Advocate for the appellant
Advocate for the respondent