[2000] KECA 327 (KLR)
The Court found that the applicants had demonstrated an arguable point on appeal, specifically the learned Judge's failure to credit the applicants with Shs. 8,979,040/= already paid to the respondent. This omission was material and warranted consideration on appeal. The Court was satisfied that the circumstances...
Source-derived case information.
- Citation
- [2000] KECA 327 (KLR)
- Parties
- Applicant: Tai Jean Garments Company Limited; Applicant: Naresh Darbar; Applicant: Bhupendra Darbar; Respondent: Viyay Morjaria
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 316 of ??
- Procedural Posture
- Civil Miscellaneous Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted, subject to condition.
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Stay of Execution, Appeals Process, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tai Jean Garments Company Limited
Applicant
Naresh Darbar
Applicant
Bhupendra Darbar
Applicant
Viyay Morjaria
Respondent
Procedural Posture
Civil Miscellaneous Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the learned Judge erred by failing to credit the applicants with the amount already paid to the respondent.
Ratio Decidendi
The Court found that the applicants had demonstrated an arguable point on appeal, specifically the learned Judge's failure to credit the applicants with Shs. 8,979,040/= already paid to the respondent. This omission was material and warranted consideration on appeal. The Court was satisfied that the circumstances justified a stay of execution to preserve the subject matter of the appeal. However, the stay was conditional upon the applicants providing a bank guarantee of Shs. 7,000,000/= within 30 days, failing which the application would stand dismissed. The Court balanced the interests of both parties by imposing this condition and directed that costs of the application be in the...
Court Disposition
Application for stay of execution granted, subject to condition.
Orders
- Stay of execution of the judgment and decree granted pending appeal.
- Applicants to execute a bank guarantee in the sum of Shs. 7,000,000/= within 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL MISCELLANEOUS APPLICATION NO. 316 of 2000
TAI JEAN GARMENTS COMPANY LIMITED .................. 1ST APPLICANT
NARESH DARBAR ...................................... 2ND APPLICANT
BHUPENDRA DARBAR ................................... 3RD APPLICANT
AND
VIYAY MORJARIA........................................RESPONDENT
RULING OF THE COURT:
This is an application under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of the judgment and decree of Rimita J. given on 4th October, 2000. The learned Judge gave judgment for the respondent for Shs.16,000,000/= as money lent by the respondent to the applicants. Mr. Oyatsi has drawn our attention to a number of shortcomings in the judgment including the learned Judge's apparent failure to give the applicants credit for Shs. 8,979,040/= which the respondent admitted he had been paid by the applicants.
The respondent's claim as pleaded in his plaint was for the recovery of Shs.16,000,000/=. The learned Judge has not explained why he disregarded that payment. This is an arguable point which the applicants should be allowed to canvass in the appeal. On the material before us we are satisfied that this is a proper case for an order of stay. Accordingly we grant the application and order that as a condition for the stay the applicants shall execute a bank guarantee in the sum of Shs. 7,000,000/= within 30 days from today. In default the application to stand dismissed with costs.
Costs of the application to be in the intended appeal.
Dated and delivered at Nairobi this 23rd day of November, 2000.
R.O. KWACH
JUDGE OF APPEAL
R.S.C. OMOLO
JUDGE OF APPEAL
A.B. SHAH
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR