[2019] KEHC 4876 (KLR)
The court found that the applicant had demonstrated sufficient cause for the grant of a stay of execution pending appeal, particularly due to the risk of irrecoverability of the decretal sum if paid to the respondent, who has no known source of income. The court balanced the interests of both parties by ordering...
Source-derived case information.
- Citation
- [2019] KEHC 4876 (KLR)
- Parties
- Applicant: Rael Wambui Wambugu; Respondent: Ronald Nyakundi Onchomba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 371 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Warrants of Attachment, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Wambui Wambugu
Applicant
Ronald Nyakundi Onchomba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court judgment pending appeal.
- 2 Whether the warrants of attachment and sale and proclamation against the applicant's property should be lifted.
- 3 What security, if any, should be provided for the due performance of the decree.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the grant of a stay of execution pending appeal, particularly due to the risk of irrecoverability of the decretal sum if paid to the respondent, who has no known source of income. The court balanced the interests of both parties by ordering partial payment to the respondent and requiring the balance to be deposited in a joint interest-earning account as security. The court further ordered that the warrants of attachment and proclamation of sale be lifted upon compliance with these conditions, and that the applicant pay the auctioneer's charges and costs of the application. This approach ensures the respondent's...
Court Disposition
application allowed with conditions
Orders
- The applicant shall pay the respondent Ksh.800,000 within 15 days from the date of the ruling.
- The balance of the decretal sum shall be deposited in an interest earning account in the names of both advocates.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NUMBER 371 OF 2019
RAEL WAMBUI WAMBUGU.......................APPLICANT
VERSUS
RONALD NYAKUNDI ONCHOMBA......RESPONDENT
R U L I N G
This is an application by way of Notice of Motion under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 rule 6 and Order 51 Rule 1 of the Civil Procedure Rules for orders that warrants of attachment and sale, as well as the proclamation against the applicant’s property be lifted, that there be a stay of execution of the lower court judgment pending the determination of the intended appeal, and that costs be provided for.
The application is supported by an affidavit sworn by the Advocate for the applicant alongside grounds set out on the face of the application. The application is opposed and there are two affidavits filed by the respondent in reply. Some authorities have also cited to assist the court in determining the application.
There is a judgment in favour of the respondent against the applicant. After the said judgment was delivered, going by the documents presented in court, there was some correspondence between the parties’ advocates. In particular, there was a letter by the advocate for the applicant informing the respondent’s advocate that they were calling for settlement funds in satisfaction of the decree. That letter is dated 1st March, 2017. It could be a contradiction to the orders sought by the applicant in view of that letter.
I have read the Memorandum of Appeal dated 15th April, 2019 and note the main complaint by the applicant is that the award of damages is considered high in view of the injuries sustained by the respondent.
The applicant has expressed fear that if the decretal sum is paid to the respondent it may not be recovered because there is no known source of income on the part of the respondent. The applicant has also offered to provide security in the form of insurance bond.
Where an applicant alleges that the respondent may not be in a position to repay the decretal sum in the event the appeals succeeds, the burden shifts to the respondent to dispute such an allegation. That notwithstanding, the respondent has a valid judgment he desires to execute while on the other hand the applicant has a right of appeal.
I am guided by the affidavit evidence which the parties agreed should form the basis of this ruling together with the cited authorities. In balancing the interests of the parties, I am inclined to allow the application on the following terms: -
i. The applicant shall pay to the respondent a sum of Ksh.800, 000/- and the balance of the decretal sum shall be deposited in an interest earning account in the names of both advocates appearing for the parties.
The above condition shall be complied with within 15 days from the date of this ruling. The warrants of attachment and proclamation of sale shall be lifted upon compliance with the above conditions. The applicant shall pay the auctioneers charges to facilitate the release of the motor vehicle, together with the costs of this application.
Dated, signed and delivered at Nairobi this 11th day of July, 2019.
A. MBOGHOLI MSAGHA
JUDGE