[2018] KECA 96 (KLR)

[2018] KECA 96 (KLR)

The Court of Appeal found that the applicants had demonstrated both that their intended appeal was arguable and that, unless a stay of execution was granted, the appeal could be rendered nugatory due to the risk of execution on a substantial monetary decree. The court noted that the respondent did not show he would...

Source-derived case information.

Citation
[2018] KECA 96 (KLR)
Parties
Applicant: Hon. Rose Ogendo Nyamunga; Applicant: Mrs. Joyce Olweya; Applicant: Mr. Paul Ogendo; Respondent: Richard B. O. Onsongo
Court
Court of Appeal
Court Station
Court of Appeal at Kisumu
Jurisdiction
Kenya
Case Number
Civil Application 44 of 2019
Procedural Posture
Stay Application / Application for Stay of Proceedings Pending Appeal
Outcome
application allowed with conditions
Judges
AM Githinji, GG Okwengu, A Mohammed
Legal Topics
Stay of Execution, Defamation Damages, Security for Costs
Source Language
en
Civil Procedure Tort Law Stay of Execution Defamation Damages Security for Costs

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Summary, issues, holding and outcome

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Parties

Hon. Rose Ogendo Nyamunga

Applicant

Mrs. Joyce Olweya

Applicant

Mr. Paul Ogendo

Applicant

Richard B. O. Onsongo

Respondent

Procedural Posture

Stay Application / Application for Stay of Proceedings Pending Appeal

Legal Issues

  1. 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Rule 5(2)(b) of the Court of Appeal Rules.
  2. 2 Whether the intended appeal is arguable and whether it would be rendered nugatory if stay is not granted.
  3. 3 What security, if any, should be imposed as a condition for stay.

Ratio Decidendi

The Court of Appeal found that the applicants had demonstrated both that their intended appeal was arguable and that, unless a stay of execution was granted, the appeal could be rendered nugatory due to the risk of execution on a substantial monetary decree. The court noted that the respondent did not show he would suffer serious prejudice from a delay, and that the respondent's interests could be protected by requiring the applicants to provide security. The court therefore granted a stay of all proceedings and consequential orders arising from the High Court judgment, on condition that the applicants deposit KES 1,500,000 in a joint interest-earning account or provide a bank guarantee...

Court Disposition

application allowed with conditions

Orders

  • Stay of all proceedings further to the High Court judgment dated 27th February, 2018, and all consequential orders, pending hearing of the appeal.
  • Applicants to deposit KES 1,500,000 in an interest-earning bank account in joint names of advocates for both parties or provide a bank guarantee for the same amount.