[2018] KEHC 5494 (KLR)
The court found that the appellants had filed the application for stay of execution timeously and had demonstrated a risk of substantial loss if the decretal sum was paid out and the appeal subsequently succeeded, as the respondent's ability to refund was in question. The court balanced the interests of both parties...
Source-derived case information.
- Citation
- [2018] KEHC 5494 (KLR)
- Parties
- Appellant: Peter Kusimba Nyongesa; Appellant: Grace Muroria; Respondent: Willy Muli Musyoka Maati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 543 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- conditional stay of execution granted pending appeal
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeal Procedure, Irreparable Loss, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kusimba Nyongesa
Appellant
Grace Muroria
Appellant
Willy Muli Musyoka Maati
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the appellants will suffer irreparable and substantial loss if stay is not granted.
- 3 What security, if any, should be provided for the due performance of the decree.
Ratio Decidendi
The court found that the appellants had filed the application for stay of execution timeously and had demonstrated a risk of substantial loss if the decretal sum was paid out and the appeal subsequently succeeded, as the respondent's ability to refund was in question. The court balanced the interests of both parties by granting a conditional stay: the appellants were required to pay the respondent Kshs. 1 million and deposit the balance of the decretal sum in an interest earning account in the names of both advocates within 30 days. This approach secured the respondent's interests while preserving the appellants' right of appeal.
Court Disposition
conditional stay of execution granted pending appeal
Orders
- The appellants shall pay the respondent Kshs. 1,000,000.
- The appellants shall deposit the balance of the decretal sum in an interest earning account in the names of both advocates within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 543 OF 2017
PETER KUSIMBA NYONGESA.............1ST APPELLANT
GRACE MURORIA..................................2ND APPELLANT
VERSUS
WILLY MULI MUSYOKA MAATI...............DEFENDANT
RULING
This is an application dated 10th October, 2017 under Sections 1 A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 50 Rule 1 of the Civil Procedure Rules, for the substantive order of stay of execution pending the determination of the appeal filed against the judgment of the lower court. There is a supporting affidavit annexed to the application alongside reasons that appear in the application.
The application is opposed and there is a replying affidavit sworn by the respondent. The respondent has a judgment in his favour against the appellants. There is a Memorandum of Appeal already filed running into 11 paragraphs challenging the said judgment. The appellants say they have an arguable appeal with high chances of success.
There is fear that if the lower court decree is executed and the decretal sum paid to the respondent, the appellants are likely to suffer irreparable and substantial loss as the respondent is unlikely to reimburse the decretal sum should the appeal succeed.
The respondent on the other hand states that no sufficient reasons have been advanced to justify the order sought, and no prejudice has been shown will be suffered if the order is not given. He is however ready to accept half of the decretal amount as a condition for stay and the balance of the decretal sum be deposited in an interest earning account in the names of both advocates.
Both parties have filed submissions which I have considered. The application was filed timeously. The respondent has a judgment in his favour while the appellants have a right of appeal.
I am inclined to grant the order sought on condition that the appellants pay the respondent a sum of Kshs. 1 Million, and cause the balance to be invested in an interest earning account in the names of both advocates for the parties within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 19th Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE