[2008] KEHC 3610 (KLR)
The court found that the appellant had demonstrated substantial loss would result if required to deposit the entire decretal sum immediately, given his limited monthly income. The application for stay of execution was filed in a timely manner. The court exercised its discretion to grant a stay of execution pending...
Source-derived case information.
- Citation
- [2008] KEHC 3610 (KLR)
- Parties
- Appellant: Shadrack Kweta Maleve; Respondent: Agnes Kavata Mutua
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- stay of execution granted on condition
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Conditions
- 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
Shadrack Kweta Maleve
Appellant
Agnes Kavata Mutua
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order XLI rule 4 of the Civil Procedure Rules.
- 2 Whether the appellant would suffer substantial loss if required to deposit the decretal sum immediately.
- 3 What is the appropriate period for the appellant to deposit the decretal sum as security.
Ratio Decidendi
The court found that the appellant had demonstrated substantial loss would result if required to deposit the entire decretal sum immediately, given his limited monthly income. The application for stay of execution was filed in a timely manner. The court exercised its discretion to grant a stay of execution pending appeal, but modified the terms by extending the period for depositing the decretal sum of Kshs. 280,155 in an interest-earning account in the joint names of the advocates from 45 days to 90 days. This balanced the need for security for due performance with the appellant's financial circumstances. Failure to comply within the extended period would result in automatic dismissal of...
Court Disposition
stay of execution granted on condition
Orders
- Stay of execution pending appeal is granted on condition that the appellant deposits the decretal sum of Kshs. 280,155 in an interest earning account in the joint names of the advocates within 90 days from the date of the ruling.
- In default of compliance within 90 days, the application for stay shall stand dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 6 of 2008
(Arising from SRMCC No. 3603 of 2006 of the Senior Resident Magistrate’s Court at Mombasa)
SHADRACK KWETA MALEVE ……………...………….APPELLANT
VERSUS
AGNES KAVATA MUTUA ……………………………RESPONDENT
R U L I N G
The appellant herein, Shadrack Kweta Maleve, took out a motion under order XLI rule 4 of the Civil Procedure Rules in which he prayed for an order of stay of execution pending appeal. He swore an affidavit in support of the motion dated 24th January 2008. Agnes Kavata Mutua, resisted the motion by fling a replying affidavit she swore on 6th February 2008.
On the 7th day of December 2007, Mr. T.M. Gesora, learned Senior Resident Magistrate, granted the appellant conditional leave to defend Mombasa S.R.M.C.C. No. 3603 of 2006 by directing him to deposit the decretal sum of Kshs.177,200/- in an interest earning account in the joint names of Counsels appearing in the matter. Being aggrieved the appellant filed this appeal. He has now taken the motion dated 25. 1.2008, the subject matter of this ruling seeking for an order of stay of execution of the order and the judgment pending the determination of this appeal.
The motion is taken out pursuant to the provisions of Order XLI rule 4 of the Civil Procedure rules. Before granting the order under the aforesaid provisions of law, an applicant must prove the substantial loss he would suffer if the order is not made. The application must be timeously filed and that security for due performance of the decree must be made.
The application was timeously filed hence the remaining two conditions are available for consideration. It is the submission of the appellant that he would suffer substantial loss if he deposits the entire decretal sum immediately . He annexed to the supporting affidavit a copy of his pay slip which shows that he earns a monthly sum of Kshs. 25,000/-. The record shows that the appellant was directed deposit a sum of Kshs.280,155/- as a contribution for the grant of stay of execution within 45 days. His net income is Kshs. 25,000/-. If such an order is made, the appellant will forego his monthly salary for 13 months to raise Kshs. 280,155/- The debt arose from a suit which was instituted against the appellant for damages for the injuries the Respondent sustained as a result of a road traffic accident involving the appellant’s motor vehicle registration No. KAP 170X. I agree that the amount in which the appellant was directed to deposit at once is substantial. If ordered to deposit at once that he may end up losing his entire income. On the other hand the law requires that the issue of security should be considered necessary. I think a fair order is to grant the order of stay of execution pending appeal on condition that the appellant do deposit the decretal sum i.e. 280,155/- in an interest earning account in the joint names of the advocates within an extended period of 90 days as opposed to 45 days from the date hereof. In default the application shall stand dismissed.
Dated and delivered at Mombasa this 8th day of April 2008.
J.K. SERGON
J U D G E
In open court in the presence of Mr. Kibara h/b Ochwa for Appellant.
N/A for Respondent.