[2019] KEHC 5121 (KLR)
The court found that the appellant had not delayed in bringing the application for stay of execution and had offered to deposit the entire decretal sum as security, which was deemed reasonable. The court balanced the appellant's right of appeal with the respondent's right to the fruits of judgment and concluded that...
Source-derived case information.
- Citation
- [2019] KEHC 5121 (KLR)
- Parties
- Appellant: Peter Ndirangu Kihara; Respondent: Don Edward Osome; Respondent: James Kamau Kinoro; Respondent: Simon Kabui Njau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 144 of 2019
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Road Traffic Accident Liability
- 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
Peter Ndirangu Kihara
Appellant
Don Edward Osome
Respondent
James Kamau Kinoro
Respondent
Simon Kabui Njau
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the offer to deposit the decretal sum as security is sufficient to warrant a stay of execution.
Ratio Decidendi
The court found that the appellant had not delayed in bringing the application for stay of execution and had offered to deposit the entire decretal sum as security, which was deemed reasonable. The court balanced the appellant's right of appeal with the respondent's right to the fruits of judgment and concluded that a conditional stay of execution was appropriate. The stay was granted on the condition that the appellant deposits the entire decretal sum in an interest-earning account in the joint names of the parties' advocates within 30 days.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- Stay of execution granted pending appeal, conditional upon the appellant depositing the entire decretal sum in an interest-earning account in the joint names of the advocates within 30 days.
- Costs to be in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 144 OF 2019
PETER NDIRANGU KIHARA.......................................................APPELLANT
VERSUS
DON EDWARD OSOME........................................................1ST RESPONDENT
JAMES KAMAU KINORO.................................................2ND RESPONDENT
SIMON KABUI NJAU..........................................................3RD RESPONDENT
RULING
This is an application by way of Notice of Motion under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, seeking an order of stay of execution pending the hearing and determination of an appeal lodged by the appellant from the Judgment and decree of the lower court delivered on 15th February, 2019.
The application is supported by an affidavit sworn by the appellant in addition to the grounds set out on the face of the application. There is a replying affidavit sworn by the advocate for the respondents herein in opposition to the application. Both counsel agreed that the application be decided on affidavit evidence.
There is already a Memorandum of Appeal filed on 18th March, 2019. The lower court judgment relates to an award made in favour of the 1st respondent against the appellant following a road traffic accident. The lower court found evidence to the effect that the appellant was to blame for the same.
There was not inordinate delay in lodging the application because after the lower court judgment, stay of execution was allowed which ended on 15th March, 2019 and this application was filed on 5th April, 2019.
There is a valid judgment in favour of the 1st respondent. On the other hand, the appellant has a right of appeal. The appellant has offered to deposit the entire decretal sum as security for grant of the orders sought. That is not an unreasonable offer.
Balancing the interests of both parties, I allow the application for stay of execution on condition that, the appellant shall deposit the entire decretal sum in an interest earning account in the names of both advocates on record 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 25th Day of July, 2019.
A.MBOGHOLI MSAGHA
JUDGE