[2019] KEHC 11360 (KLR)
The court found that the appellant had not demonstrated substantial loss nor indicated willingness to deposit security, but noted that the respondent was not strongly opposed to the stay provided security was furnished. The court exercised its discretion to balance the interests of both parties and granted a...
Source-derived case information.
- Citation
- [2019] KEHC 11360 (KLR)
- Parties
- Appellant: Stephen Wambugu Mwangi; Respondent: Appex Steel Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 367 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- CM Kamau
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Conditions, Substantial Loss, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Wambugu Mwangi
Appellant
Appex Steel Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the appellant has demonstrated substantial loss if stay is not granted.
- 3 Whether security for the due performance of the decree should be ordered.
Ratio Decidendi
The court found that the appellant had not demonstrated substantial loss nor indicated willingness to deposit security, but noted that the respondent was not strongly opposed to the stay provided security was furnished. The court exercised its discretion to balance the interests of both parties and granted a conditional stay of execution, requiring the appellant to deposit the decretal sum in a joint interest earning account within sixty days, failing which the stay would lapse.
Court Disposition
Conditional stay of execution granted.
Orders
- Prayer No (3) of the Appellant’s Notice of Motion application dated and filed on 8th August 2018 is granted on condition that the appellant deposits the decretal sum of Kshs 2,541,924 in a joint interest earning account in the names of both parties' advocates within sixty days, failing which the stay will lapse.
- Costs of the application shall be in the course.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO 367 OF 2018
STEPHEN WAMBUGU MWANGI.................................APPELLANT
VERSUS
APPEX STEEL LIMITED............................................RESPONDENT
RULING
INTRODUCTION
1. The Appellant’s Notice of Motion application dated and filed on 8th August 2018 is premised on the provisions of Order 42 Rule 6, Order 51 of the Civil Procedure Rules and all enabling provisions of the law. It seeks a stay of execution of the judgment and decree of Hon D W Mburu (PM) in Milimani Chief Magistrates Court CMCC No 3476 of 2013 delivered on 27th July 2018 pending the hearing and determination of the Appeal. Prayer No (1) therein was spent.
2. The said application was opposed. The Respondent filed Grounds of Opposition dated 31st October 2018 on the same date. The Respondent’s Replying Affidavit was sworn by Kush Nathwani on 30th October 2018. The Respondent’s List of Authorities was dated 31st October 2018.
3. Having looked at the Appellant’s application and Written Submissions dated 24th April 2019 and filed on 29th April 2019 and having heard oral submissions by his counsel and counsel for the Respondent, it was clear that the Appellant had not demonstrated all the conditions set out in Order 42 Rule 6 of Civil Procedure Rules for the granting of a stay of execution.
4. The Appellant’s counsel informed this court that his business collapsed. He has not therefore demonstrated any substantial loss that he would suffer. He may have filed his present application without undue delay but he had not indicated that he was willing to deposit any security.
5. Be that is may, as the Respondent’s counsel was really not opposed to the stay being granted, the same to be granted on condition of security being deposited and it had not demonstrated the prejudice it would suffer if the order was granted today, I am inclined to balance the interest of the Appellant and that of the Respondent.
DISPOSITION
6. Having considered the Affidavit evidence and the oral and written submissions and case law, I hereby direct as follows:-
1. Prayer No (3) of the Appellant’s Notice of Motion application dated and filed on 8th August 2018 is hereby granted on condition that the Appellant shall deposit in a joint interest earning account in the name of his advocates and those of the Respondent the decretal sum of Kshs 2,541,924/= within the next sixty (60) days from today i.e by 15th July 2019 failing which the conditional of stay will automatically lapse.
2. Costs of the application shall be in the course.
7. Orders accordingly.
DATED and DELIVERED at NAIROBI this 13thday of May 2019
J. KAMAU
JUDGE