[2012] KEHC 2208 (KLR)
The court found that although the applicant had previously failed to comply with a consent order to pay the decretal sum, the interests of justice required that the applicant be given a further opportunity to prosecute the appeal without suffering irreparable loss. The court balanced the need to protect the...
Source-derived case information.
- Citation
- [2012] KEHC 2208 (KLR)
- Parties
- Appellant: South Nyanza Sugar Co. Ltd; Respondent: Fredrick Odoyo Matunga
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 211 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on conditions.
- Legal Topics
- Stay of Execution, Security for Costs, Consent Orders, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Co. Ltd
Appellant
Fredrick Odoyo Matunga
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant has complied with the conditions for stay, including deposit of decretal sum and provision of security for costs.
- 3 Whether the respondent's financial position justifies the grant of stay.
Ratio Decidendi
The court found that although the applicant had previously failed to comply with a consent order to pay the decretal sum, the interests of justice required that the applicant be given a further opportunity to prosecute the appeal without suffering irreparable loss. The court balanced the need to protect the respondent's interests by imposing conditions: part payment of the decretal sum, deposit of the balance in court, and execution of security for costs within a specified period. The stay of execution was made conditional upon strict compliance with these terms, and would lapse automatically if not met or if the appeal was not prosecuted within one year. The court also ordered the...
Court Disposition
Application for stay of execution allowed on conditions.
Orders
- The applicant shall pay the respondent KES 150,000 as part payment of the outstanding decretal amount within 30 days.
- The applicant shall deposit into court the balance of the decretal amount within 30 days.
Full Case Text
Judgment text and source record
24 paragraphs
SOUTH NYANZA SUGAR CO. LTD........................................................APPELLANT
-VERSUS-
FREDRICK ODOYO MATUNGA............................................................RESPONDENT
RULING
The applicant has filed the instant application seeking stay order against execution arising out of a decree in CMCC No. 56 of 2004. Judgment was delivered on 28th September, 2011. Immediately thereafter the appellant made an application for stay of execution before the lower court. The application was dismissed by the lower court on 30th November 2011, prompting the applicant to file the present application dated 5th December, 2011 before this court on 7th December, 2011. Before the application could be heard inter-partes, the respondent moved to execute and caused warrants of attachment to be issued to Omwoyo Auctioneers. The respondent’s action prompted the applicant to file another application dated 9th December, 2011 seeking to stop the attachment and sale of its goods by the respondent. A temporary stay was granted by this court pending inter-partes hearing.
The application is opposed by the respondent. In his replying affidavit dated 27th February, 2011, Mr. Oduk Advocate for the respondent, has opposed the stay on the basis that the applicant had been required to deposit the full decretal amount which he failed to. This was pursuant to a consent order recorded in court by the parties on 7th June, 2010. The respondent contends that the applicant is seeking to challenge the decree through the present application.
When the application came before me, parties consented to canvass the same by way of written submissions. I have carefully considered the submissions and the record.
The applicant has argued that his appeal will be rendered nugatory if the stay is not granted and that the respondent decree-holder is a man of straw incapable of effecting a refund should the appeal succeed. He has also expressed willingness to abide by any conditions set by the court.
The respondent on the other hand has submitted that the applicant has not honoured the terms of consent entered by the parties earlier in which was to pay the decretal sum within 30 days of the 7th June, 2010 and that it subsequently failed to show cause why execution would not issue. Having considered the rival submissions and the record, I allow the application in the following terms:-
1. The applicant shall pay the respondent One hundred and fifty thousand shillings (kshs. 150,000) as part payment of the outstanding decretal amount within 30 days.
2. The applicant shall deposit into court the balance of the decretal amount within 30 days.
3. The applicant shall execute security for costs within 30 days.
4. The stay order shall automatically lapse if any of the above conditions are not met and further if the applicant will not have prosecuted the appeal within one year.
5. Costs of the present application will be borne by the applicant.
It is so ordered.
Ruling dated, signedand delivered at Kisii this 23rd day of August, 2012.
R. LAGAT-KORIR
JUDGE
In the presence of:
Edwin Mongare court clerk
…..…………..………..... Counsel for the appellant
…………………..…….... Counsel for the respondent
R. LAGAT-KORIR
JUDGE