[2020] KEHC 3836 (KLR)
The court found that the application for stay of execution was filed within the prescribed time and that the applicant had expressed willingness to deposit half of the decretal sum as security. In balancing the interests of both parties, the court determined that a conditional stay was appropriate. The applicant was...
Source-derived case information.
- Citation
- [2020] KEHC 3836 (KLR)
- Parties
- Appellant: Sunny Hauliers Limited; Respondent: Charles Wambua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 161 of 2020
- Procedural Posture
- Civil Appeal / Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on terms.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeal Procedure, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sunny Hauliers Limited
Appellant
Charles Wambua
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the application for stay of execution was filed within the prescribed time and that the applicant had expressed willingness to deposit half of the decretal sum as security. In balancing the interests of both parties, the court determined that a conditional stay was appropriate. The applicant was ordered to pay part of the decretal sum to the respondent and to deposit the balance in a joint interest-earning account in the names of both advocates. The court held that these conditions would secure the respondent's interests while preserving the appellant's right of appeal. Failure to comply with these conditions within 45 days would result in execution proceeding.
Court Disposition
Application for stay of execution allowed on terms.
Orders
- The applicant shall pay the respondent the sum of Kshs. 300,000.
- The applicant shall deposit Kshs. 500,000 in an interest earning account in the names of both advocates.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 161 OF 2020
SUNNY HAULIERS LIMITED.......................................................................APPELLANT
VERSUS
CHARLES WAMBUA....................................................................................RESPONDENT
RULING
There is before me an application by way of Notice of Motion dated 17th April, 2020 seeking an order that there be a stay of execution pending the hearing of the appeal lodged herein. The decision of the lower court was made on 5th March, 2020 and this application was filed on 5th May, 2020.
After the lower court judgment, stay of execution was allowed for 30 days. Computing the time after the said 30 days, this application was filed timeously. The application is based on the grounds set out on the face thereof, and the supporting affidavit sworn by the advocate for the applicant. It is opposed and there is a replying affidavit sworn by the respondent. Parties have also filed submissions.
I have considered the said submissions alongside the provisions of law and in particular Order 42 rule 6 of the Civil Procedure Rules. In the Memorandum of Appel, the appellant is aggrieved by both the finding of liability and quantum. The right of appeal is guaranteed while on the other hand, the respondent has a judgment in his favour.
The applicant is ready to deposit half of the decretal sum pending the hearing of the appeal. In balancing the interests of both parties, I hereby allow the application on the following terms; a)The applicant shall pay the respondent the sum of Kshs. 300,000/= .
b) The applicant shall also cause to be deposited in an interest earning account in the names of both advocates a sum of Kshs. 500,000/=.
c) The above conditions shall be complied with within 45 days from the date of this ruling.
d) In default the execution shall proceed.
The costs of this application shall abide by the decision of the appeal.
Dated, signed and delivered at Nairobi this 30th day of July 2020.
A. MBOGHOLI MSAGHA
JUDGE