[2018] KEHC 6981 (KLR)
The court found that the appellant had a right of appeal and that the application for stay of execution was filed without undue delay. Recognizing the respondent's right to enjoy the fruits of her judgment, the court exercised its discretion to grant a conditional stay of execution. The condition imposed was that...
Source-derived case information.
- Citation
- [2018] KEHC 6981 (KLR)
- Parties
- Appellant: Stephen Ndirangu Kinyanjui; Respondent: Esther Njambi Kinuthia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 505 of 2010
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal to the Court of Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals Process, Immovable Property Disputes, Rental Income Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Ndirangu Kinyanjui
Appellant
Esther Njambi Kinuthia
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal to the Court of Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal to the Court of Appeal.
- 2 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the appellant had a right of appeal and that the application for stay of execution was filed without undue delay. Recognizing the respondent's right to enjoy the fruits of her judgment, the court exercised its discretion to grant a conditional stay of execution. The condition imposed was that all rental proceeds from the leased premises, which are the subject of the dispute, be deposited in an interest-earning joint account in the names of both parties' advocates. This arrangement was deemed to balance the interests of both parties pending the determination of the appeal by the Court of Appeal.
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Stay of execution granted on condition that all rental proceeds from the leased premises be deposited in an interest-earning joint account in the names of both advocates for the parties, pending the hearing and determination of the appeal.
- The joint account shall be opened within 14 days from the date of this application and take effect from 30th April, 2018.
Full Case Text
Judgment text and source record
16 paragraphs
REPBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 505 OF 2010
STEPHEN NDIRANGU KINYANJUI....APPELLANT/APPLICANT
VERSUS
ESTHER NJAMBI KINUTHIA.....................................RESPONDENT
RULING
On 15th June, 2016 this court delivered a judgment on an appeal filed by the appellant. There is now an application before me for stay of execution pending hearing and determination of yet another appeal, this time to the Court of Appeal. The application which is dated 29th June, 2016 is under Order 22 rule 1, Order 42 rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The grounds are set out and there is a supporting affidavit by the appellant. A notice of appeal has already been lodged.
The application is opposed and there is a replying affidavit sworn by the respondent. Both parties have filed their submissions. At some stage parties indicated there was a possibility of a settlement. This however did not come to pass. The application was filed timeously. The subject matter is immovable property constructed on a piece of land in dispute.
I have taken into consideration the fact that the appellant has the right of appeal and at the same time the respondent has a judgment in her favour.
The order that commends itself in the circumstance is that there shall be a stay of execution on condition that all rental proceeds from the leased premises shall be deposited in an interest earning joint account in the names of both advocates for the parties, pending the hearing and determination of the appeal. This account shall be opened within 14 days from the date of this application and take effect from 30th April, 2018.
The costs of this application shall be on appeal.
Dated, signed and delivered at Nairobi this 20th Day of March, 2018.
A. MBOGHOLI MSAGHA
JUDGE