[2022] KEHC 2620 (KLR)
The court found that the appellants had complied with the condition precedent of depositing KES 200,000 as security for the due performance of the decree, and that their averment was not controverted by the respondents. In the absence of opposition and in light of compliance, the court was satisfied that the...
Source-derived case information.
- Citation
- [2022] KEHC 2620 (KLR)
- Parties
- Appellant: Point 50 Capital Limited; Appellant: Apollo Eric; Respondent: Humphrey Njoroge Mumita; Respondent: Sophie Murage Musasi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E765 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Stay of Execution
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Interim Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Point 50 Capital Limited
Appellant
Apollo Eric
Appellant
Humphrey Njoroge Mumita
Respondent
Sophie Murage Musasi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Stay of Execution
Legal Issues
- 1 Whether the appellants are entitled to an extension of the interim stay of execution order pending interpartes hearing of their motion.
- 2 Whether compliance with the condition of depositing security in court justifies the extension of stay.
Ratio Decidendi
The court found that the appellants had complied with the condition precedent of depositing KES 200,000 as security for the due performance of the decree, and that their averment was not controverted by the respondents. In the absence of opposition and in light of compliance, the court was satisfied that the appellants were entitled to an extension of the interim stay of execution order. The extension was necessary to preserve the status quo and prevent the decree from being executed before the substantive motion could be heard interpartes. Accordingly, the court reissued and extended the stay of execution until the scheduled hearing date of the substantive motion.
Court Disposition
application allowed
Orders
- The order for stay of execution of the trial court’s decree is reissued and extended to last until 1st March 2022 when the motion dated 25.11.2021 comes up for interpartes hearing.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. E765 OF 2021
POINT 50 CAPITAL LIMITED.............................................................1ST APPELLANT
APOLLO ERIC........................................................................................2ND APPELLANT
VERSUS
HUMPHREY NJOROGE MUMITA................................................1ST RESPONDENT
SOPHIE MURAGE MUSASI ........................................................ 2ND RESPONDENT
RULING
1) On 30th November 2021, Lady Justice Meoli, granted an interim order for stay of execution of decree issued by the trial court for 45 days on condition that the applicants deposit the sum of ksh.200,000/= in court within 14 days.
2) The applicants were further required to approach the registry to fix an interpartes hearing date of the motion dated 25. 11. 2021. The registry eventually fixed the aforesaid application for interpartes hearing on 2nd February, 2022.
3) The appellants/applicants have now taken out the motion dated 18th January 2022 in which they basically sought for the extension of the interim orders for stay of execution of the decree since they would lapse before the hearing date. The application proceeded for hearing exparte when the respondents failed to attend court and when they also failed to respond to the application.
4) It is the submission of the appellants that they complied with the order requiring them to deposit in court the sum of ksh.200,000/= as security for the due performance of the decree.
5) The appellants aver in the affidavit sworn by Eric Apollo that they deposited the aforesaid amount in court as a condition precedent to enjoy the stay orders. That averment is not controverted by the respondents.
6) I am satisfied that the appellants are entitled to have the order for stay reissued and extended to last until the interpartes hearing date of the motion dated 25. 11. 2021.
7) In the end, I find the motion dated 18. 1.2022 to be with merits.
Consequently, an order for stay of execution of the trial court’s decree is re issued to last until 1st March 2022 when the motion dated 25. 11. 2021 comes up for interpartes hearing.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 4TH DAY OF FEBRUARY, 2022.
………….…………….
J. K. SERGON
JUDGE
IN THE PRESENCE OF:
……………………………. FOR THE APPELLANT
……………………………. FOR THE RESPONDENT