[2023] KEHC 3903 (KLR)
The court found that the appellants had satisfied the statutory conditions for the grant of stay of execution pending appeal as set out in Order 42 Rule 6(2) of the Civil Procedure Rules. Both parties agreed on the necessity of security for due performance, and the appellants' willingness to deposit Kshs. 850,000 as...
Source-derived case information.
- Citation
- [2023] KEHC 3903 (KLR)
- Parties
- Appellant: Cynthia Muyoti Shiundu; Appellant: Fab Guru Holdings Limited; Respondent: Alice Akinyi Opiyo Nyaoro
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E642 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed with conditions.
- Judges
- JN Mulwa
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Conditions, Small Claims Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cynthia Muyoti Shiundu
Appellant
Fab Guru Holdings Limited
Appellant
Alice Akinyi Opiyo Nyaoro
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether security for due performance of the decree should be provided by the appellants.
Ratio Decidendi
The court found that the appellants had satisfied the statutory conditions for the grant of stay of execution pending appeal as set out in Order 42 Rule 6(2) of the Civil Procedure Rules. Both parties agreed on the necessity of security for due performance, and the appellants' willingness to deposit Kshs. 850,000 as security was deemed sufficient. The court therefore allowed the application for stay of execution on condition that the appellants deposit the specified sum in an interest-earning account in the names of the parties' advocates within twenty-one days, failing which the stay would lapse. Costs of the application were ordered to abide the outcome of the appeal.
Court Disposition
Application for stay of execution pending appeal allowed with conditions.
Orders
- The appellants shall deposit Kshs. 850,000 in an interest-earning account in the names of the parties' advocates within twenty-one days from the date of the ruling.
- In default of the above, the stay granted shall automatically lapse.
Full Case Text
Judgment text and source record
25 paragraphs
Shiundu & another v Nyaoro (Civil Appeal E642 of 2022) [2023] KEHC 3903 (KLR) (Civ) (3 May 2023) (Ruling)
Neutral citation: [2023] KEHC 3903 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E642 of 2022
JN Mulwa, J
May 3, 2023
Between
Cynthia Muyoti Shiundu
1st Appellant
Fab Guru Holdings Limited
2nd Appellant
and
Alice Akinyi Opiyo Nyaoro
Respondent
Ruling
1. Before court is a Chamber Summons dated 19th August 2022 brought pursuant to the provisions of the Judicature Act Cap 8, The High Court (Practice and Procedure Rules (Part 1 rule 3); Order 42 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010; and Section 1A, 1B & 3A of the Civil Procedure Act. The Appellants seek a stay of execution of the Judgment of Hon. J. W. Munene delivered on 21st July 2022 in Small Claims Court Case No. E 2422 of 2022 – Alice Akinyi Opiyo v Cynthia Muyoti Shiundu & another pending the hearing and determination of the Appeal. The Applicants also pray that the costs of the Application be provided for.
2. The application is predicated on the grounds set out on its face and supported by the Affidavit of Cynthia Muyoti Shiundu, a Director of the 2nd Appellant.
3. The Respondent responded through an Affidavit sworn on 25th October 2022.
4. The court has considered the parties respective affidavits in support of and in opposition of the application as well as their respective oral arguments. The only issue is whether the Applicant has satisfied the conditions for the grant of stay of execution pending appeal.
5. The conditions necessary for the grant of stay of execution pending appeal are laid out in Order 42 Rule 6(2) of the Civil Procedure Rules as follows:“6. (2)No order for stay of execution shall be made under sub-rule (1) unless:a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant."
6. In the instant case, the Respondent is agreeable to the grant of stay of execution of the impugned judgment pending appeal on condition that the Appellants provide security for the due performance of the Decree. The Appellants on the other hand have expressed willingness to deposit the sum of Kshs. 850,000/- as security and are willing to abide by any conditions that may be set by this Honourable court.
7. For the foregoing, the court finds that the Appellants application dated 19th August 2022 is merited and is allowed in the following terms:a.The Appellant shall deposit the sum of Kshs. 850,000/- in an interest earning account in the names of the parties advocates within twenty-one (21) days from the date of this ruling.b.In default of (a) above, the stay granted shall automatically lapse.c.The costs of the application shall abide the outcome of the appeal.Orders accordingly.
DATED, DELIVERED AND SIGNED IN NAIROBI THIS 3RD DAY OF MAY, 2023. J. N. MULWAJUDGE