[2021] KEHC 4136 (KLR)
The court granted a stay of execution of the decree pending appeal on the condition that the applicant provides a bank guarantee for Kshs. 3,000,000 within 45 days. The court also ordered the appellant to pay the respondent the undisputed sum of Kshs. 1,500,000 and Kshs. 9,850 within the same period. The rationale...
Source-derived case information.
- Citation
- [2021] KEHC 4136 (KLR)
- Parties
- Appellant: Stephen Mwangi Gichuri; Respondent: Fred Maraga Abincha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E429 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mwangi Gichuri
Appellant
Fred Maraga Abincha
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal.
- 2 What security should be provided for the due performance of the decree.
- 3 Whether undisputed sums should be paid pending appeal.
Ratio Decidendi
The court granted a stay of execution of the decree pending appeal on the condition that the applicant provides a bank guarantee for Kshs. 3,000,000 within 45 days. The court also ordered the appellant to pay the respondent the undisputed sum of Kshs. 1,500,000 and Kshs. 9,850 within the same period. The rationale was that the respondent did not oppose the stay provided security was given, and the applicant admitted liability for the undisputed sums. The orders ensure that the respondent is protected by security for the disputed amount while receiving the undisputed sums without delay, balancing the interests of both parties pending the outcome of the appeal.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- Stay of execution of the decree granted pending appeal on condition that the applicant provides a bank guarantee for Kshs. 3,000,000 within 45 days.
- Appellant to pay the respondent the undisputed sum of Kshs. 1,500,000 and Kshs. 9,850 within 45 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. E429 OF 20221
STEPHEN MWANGI GICHURI......APPELLANT/RESPONDNET
VERSUS
FRED MARAGA ABINCHA..............RESPONDENT/APPLICANT
RULING
It is clear that the respondent is not opposing the application for stay of execution of the decree so long as security for the due performance of the decree is given. The applicant has also admitted that there is no appeal as against the award of kshs.1,500,000 and ksh.9,850/=.
Consequently, the motion dated 15. 7.2021 is allowed thus giving rise to issuance of the following orders
i. An order for stay of execution of the decree is granted pending appeal on condition that the applicant provides a bank guarantee for ksh.3,000,000/= within a period of 45 days from the date hereof.
ii. The appellant to pay the respondent the undisputed sum of ksh.1,500,000/= and ksh.9,850/= (I.e 1,509,850/=) within a period of 45 days from the date hereof.
iii. In default of (i) and (ii) above, the order for stay shall lapse and the respondent will be at liberty to execute.
iv. Costs of the motion to abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2021
…….….…………….
J. K. SERGON
JUDGE
In the presence of:
…………………………………. for the Appellant
…………………………………. for the Respondent