[2020] KEHC 8379 (KLR)
The court found that the issue of whether to grant a stay of execution had already been determined by the duty judge on 15th October 2019, who found that a stay was merited due to the respondent's proclamation of the appellant's property. The only remaining issue was the terms of the stay. The court confirmed the...
Source-derived case information.
- Citation
- [2020] KEHC 8379 (KLR)
- Parties
- Appellant: Protective Custody Limited; Respondent: Joseph Mumia Ndubi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 99 of 2019
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Stay of execution of the decree granted pending appeal, conditional on deposit of Kshs. 300,000 within 14 days.
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Appeal Procedure, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Protective Custody Limited
Appellant
Joseph Mumia Ndubi
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether a stay of execution of the decree in Kakamega CMCCC No. 220 of 2018 should be granted pending appeal.
- 2 What terms should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the issue of whether to grant a stay of execution had already been determined by the duty judge on 15th October 2019, who found that a stay was merited due to the respondent's proclamation of the appellant's property. The only remaining issue was the terms of the stay. The court confirmed the temporary stay orders and imposed a condition that the appellant deposit Kshs. 300,000 in court within fourteen days, failing which the stay would lapse. This approach balanced the interests of both parties and ensured that the appeal would not be rendered nugatory while also providing security for the respondent.
Court Disposition
Stay of execution of the decree granted pending appeal, conditional on deposit of Kshs. 300,000 within 14 days.
Orders
- Temporary stay orders granted on 15th October 2019 are confirmed.
- There shall be stay of execution of the decree of the trial court to last the duration of the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 99 OF 2019
PROTECTIVE CUSTODY LIMITED...................................................APPELLANT
VERSUS
JOSEPH MUMIA NDUBI....................................................................RESPONDENT
RULING
1. The application that I am called upon to determine is the Motion dated 14th October 2019, which seeks stay of the decree and all consequential orders made in Kakamega CMCCC No. 220 of 2018, pending the hearing and determination of the instant appeal.
2. The Motion was brought under certificate of urgency, and was placed before the Judge on duty on 15th October 2019. The Judge made a finding that stay of execution was merited. In view of that finding, it would be academic for me to venture into the exercise of assessing the merits of the said Motion. The only thing outstanding, for me to deal with, is the terms of the stay of execution.
3. For avoidance of doubt, the order, recorded on 15th October 2019, says:
“I have perused and considered the application dated 14/10/19. The same is certified as urgent. The respondent has proclaimed the applicant’s property in execution of the decree. I am of the view that a stay of execution is merited. Stay of execution is hereby granted pending the hearing of the application inter partes ...”
4. A copy of the decree that is the subject of the stay order has not been placed before me by either party. I have, though, seen, on record, a copy of a notice of entry of judgement, dated 21st March 2019, which indicates that the total judgement sum was Kshs. 525, 420. 00, less costs and interests. There is also a proclamation of attachment, dated 9th October 2019, where the amount of decree is stated to be Kshs. 616, 903. 00.
5. In the circumstances, I shall confirm the temporary stay orders granted on 15th October 2019, so that there shall be stay of execution of the decree of the trial court, to last the duration of the appeal herein. The said stay order shall be conditioned upon the appellant depositing, in court, a sum of Kshs. 300, 000. 00, in the next fourteen (14) days of the date of this ruling, in default of which the stay order shall lapse automatically.
DATED, SIGNED and DELIVERED at KAKAMEGA this 14th DAY OF February 2020
W. MUSYOKA
JUDGE