[2019] KEHC 724 (KLR)
The court found that the applicant has a right of appeal and that the respondents have a judgment they wish to execute. In balancing these interests, the court determined that justice would be served by granting a stay of execution on condition that the applicant deposits the entire decretal sum in a joint interest...
Source-derived case information.
- Citation
- [2019] KEHC 724 (KLR)
- Parties
- Applicant: Soroya Investments Limited; Respondent: Boniface Masinde t/a Boniface Masinde & Co. Advocates; Respondent: Galaxy Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 632 of 2018
- 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, Money Decree, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Soroya Investments Limited
Applicant
Boniface Masinde t/a Boniface Masinde & Co. Advocates
Respondent
Galaxy Auctioneers
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's judgment pending appeal.
- 2 Whether security for the decretal sum should be ordered to balance the interests of both parties.
Ratio Decidendi
The court found that the applicant has a right of appeal and that the respondents have a judgment they wish to execute. In balancing these interests, the court determined that justice would be served by granting a stay of execution on condition that the applicant deposits the entire decretal sum in a joint interest earning account in the names of both parties' advocates within 30 days. This condition secures the respondents' interests while allowing the applicant to pursue the appeal without undue prejudice. Failure to comply with this condition would entitle the respondents to proceed with execution.
Court Disposition
application allowed with conditions
Orders
- The application for stay of execution is allowed on condition that the applicant deposits the entire decretal sum in an interest earning account in the names of both advocates within 30 days.
- In default of compliance, execution shall proceed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. 632 OF 2018
SOROYA INVESTMENTS LIMITED........................................................................APPLICANT
VERSUS
BONIFACE MASINDE T/A BONIFACE MASINDE & CO. ADVOCATES...1st RESPONDENT
GALAXY AUCTIONEERS...............................................................................2ND RESPONDENT
RULING
This is an application by way of Notice of Motion dated 26th March, 2019 seeking a stay of execution of the judgment of the lower court delivered on 28th September, 2018. The application is supported by grounds set out on the face of the application alongside a supporting affidavit sworn by a manager of the applicant.
The application is opposed and the respondent filed a replying affidavit. Both parties have also filed submissions to address the application. It is important to observe from the outset that the applicant has the right of appeal and at the same the respondents have a judgment which they desire to execute.
In addressing applications of this nature, the court has to balance the interests of both parties avoiding prejudice that may be occasioned in the process. The claim in the lower court was for a refund of rent paid by the respondents to the applicant. This is a money decree. That notwithstanding, every party in a contested matter should be allowed to exhaust all the avenues available before being driven from the seat of justice.
I am guided by the cited authorities and also note that, the applicant is ready and willing to secure the decretal sum by way of depositing the same in a joint interest earning account, which order if allowed shall secure the interest of the respondents. I have no doubt that the respondents may be in a position to repay the decretal sum in the event the appeal succeeds.
That notwithstanding, I believe in the interest of justice the order sought should be allowed. Accordingly the application dated 26th March, 2019 is hereby allowed on condition that, the applicant shall cause to be deposited the entire decretal sum in an interest earning account in the names of both advocates appearing for the parties within 30 days from the date of this ruling. In default execution shall proceed.
Dated, signed and delivered at Nairobi this 7th Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE