[2019] KEHC 4699 (KLR)
The court found that the application for stay of execution was filed within reasonable time after the delivery of judgment. The applicant raised substantial grounds of appeal and demonstrated willingness to deposit the judgment sum as security in a joint interest earning account. The respondent did not oppose the...
Source-derived case information.
- Citation
- [2019] KEHC 4699 (KLR)
- Parties
- Appellant: Swan Carriers Limited; Respondent: Boniface Moseti Oyaro
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 185 of 2015
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution granted, conditional on deposit of judgment sum.
- Judges
- REA Ougo
- Legal Topics
- Stay of Execution, Appeals Process, Security for Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swan Carriers Limited
Appellant
Boniface Moseti Oyaro
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the application for stay was filed within reasonable time.
- 3 Whether the applicant has demonstrated willingness to provide security for the due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was filed within reasonable time after the delivery of judgment. The applicant raised substantial grounds of appeal and demonstrated willingness to deposit the judgment sum as security in a joint interest earning account. The respondent did not oppose the application and was described as a man of straw, indicating that recovery of the decretal sum would be difficult if the appeal succeeded. On these grounds, the court exercised its discretion to grant a stay of execution pending the hearing and determination of the intended appeal, conditional upon the applicant depositing the judgment sum within 45 days.
Court Disposition
Application for stay of execution granted, conditional on deposit of judgment sum.
Orders
- A stay of execution of the judgment delivered on 3/5/2019 is granted pending the hearing and determination of the intended appeal.
- The applicant shall deposit the judgment sum of Kshs.480,000 in a joint interest earning account in the names of the advocates for the parties within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. 185 OF 2015
SWAN CARRIERS LIMITED ..................................APPELLANT
VERSUS
BONIFACE MOSETI OYARO............................ RESPONDENT
(Being an appeal from the judgment of Hon. J.M. Njoroge (SPM) delivered on 7th December, 2015 in Kisii Civil Suit No. 214 of 2013)
RULING
I have condidered the application dated the 22/5/2019. The applicant/Appellant seeks a stay of execution of the Judgment of this court delivered on the 3/5/2019 pending the hearing and determination of the intended appeal. The application is supported by the affidavit of Godi Gathu and the grounds stated on the face of the application. The application was not opposed. Counsels made oral submissions which I have considered together with the affidavits filed and the law on stay of execution. The application was filed within reasonable time on the 22/5/2019 after delivery of the judgment on the 3/5/2019. The applicant has attached her grounds of appeal challenging the court’s decision. They raise a substantial issue. It was not disputed that the Respondent is man of straw. The applicant is also willing to deposit the decretal/judgment sum in a joint interest earning account.
I find merit in the application. A stay of execution to issue of the judgment delivered on the 3/5/2019 pending the hearing and determination of the intended appeal. The applicant shall deposit the judgment sum of Kshs.480000/= in a joint interest earning account inthe names of the advocates for the parties within 45 days from today. In default the stay order shall be vacated and the Respondent shall be at liberty to proceed with execution. Costs be in the cause.
Dated, Signed and delivered at Kisii this 20th day of June 2019.
R.E. OUGO
JUDGE
In the presenc of:
Miss Kebungi h/b Ms Mucheru For the Applicant
Mr. Nyakundi h/b Mr. Ombati For the Respondent
Ivayo Court Clerk