[2019] KEHC 788 (KLR)
The court found that the application for stay of execution was filed within reasonable time and that the applicant had raised concerns about the appeal being rendered nugatory if stay was not granted. The court clarified that while it is preferable for the applicant to offer security, the rules empower the court to...
Source-derived case information.
- Citation
- [2019] KEHC 788 (KLR)
- Parties
- Appellant: Spero Africa Limited; Respondent: Africert Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 482 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Spero Africa Limited
Appellant
Africert Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on 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 established that substantial loss may result if stay is not granted.
- 3 Whether security for due performance is required before granting stay of execution.
Ratio Decidendi
The court found that the application for stay of execution was filed within reasonable time and that the applicant had raised concerns about the appeal being rendered nugatory if stay was not granted. The court clarified that while it is preferable for the applicant to offer security, the rules empower the court to order security for the due performance of the decree. Balancing the interests of both parties, the court exercised its discretion to grant a conditional stay of execution, requiring the applicant to deposit the entire decretal sum in an interest earning account in the joint names of both advocates within 30 days, failing which execution would proceed.
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- There shall be a stay of execution provided that the applicant shall deposit the entire decretal sum in an interest earning account in the joint names of both advocates for the parties within 30 days from the date of this ruling.
- In default of deposit, execution shall proceed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 482 OF 2019
SPERO AFRICA LIMITED ...........................................APPELLANT/APPLICANT
VERSUS
AFRICERT LIMITED.........................................................................RESPONDENT
RULING
The lower court delivered a judgment in favour of the respondent against the applicant on 17th July, 2019. The applicant was dissatisfied with that judgment and filed an appeal on 19th August, 2019. Alongside the memorandum of appeal, a Notice of Motion was also filed for stay of execution of that judgment. The application is premised upon Sections 1A,1B,3A and 79G of the Civil Procedure Act and Order 42 Rule 6 (1) and (6) of the Civil Procedure Rules. There is also a supporting affidavit sworn by the advocate for the applicant.
The application is opposed and the respondent has filed a replying affidavit sworn by the Finance Manager. Both parties have filed submissions in the argument of the application and cited some authorities. These I have considered. The parameters of addressing such applications are now settled.
The application was filed within reasonable time and what the applicant was supposed to establish is that, if the order is not granted substantial loss may result. The respondent has submitted that the applicant has not offered any security.
It should be made clear that under the rules, it is the court to order security for the due performance of such decree as may be ultimately issued against the applicant. That is to say, it may add value if the applicant offers security, but in the event that offer is not forthcoming the court may not deny the applicant such an order.
The applicant has alluded to the appeal being rendered nugatory if the order is not granted. I have the duty to balance the interests of the parties herein. The applicant has the right of appeal but also the respondent has a judgment in its favour anxious to execute. The discretion of the court is called upon in such circumstances.
I order that there shall be a stay of execution provided that, the applicant shall deposit the entire decretal sum in an interest earning account in the joint names of both advocates for the parties within 30 days from the date of this ruling.. In default execution shall proceed. Costs shall abide by the decision of the appeal.
Dated, signed and delivered at Nairobi this 9th Day of December, 2019.
A. MBOGHOLI MSAGHA
JUDGE