[2018] KEHC 8654 (KLR)
The court found that the applicant demonstrated substantial loss would occur if stay was denied, as its assets would be subject to attachment and there was insufficient evidence the respondent could refund the decretal sum if the appeal succeeded. However, the application was not filed timeously, as there was a...
Source-derived case information.
- Citation
- [2018] KEHC 8654 (KLR)
- Parties
- Respondent: Taib Ali Taib; Applicant: Nation Media Group
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 598 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Taib Ali Taib
Respondent
Nation Media Group
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is denied.
- 2 Whether the application for stay was filed without unreasonable delay.
- 3 Whether security for due performance of the decree should be provided.
Ratio Decidendi
The court found that the applicant demonstrated substantial loss would occur if stay was denied, as its assets would be subject to attachment and there was insufficient evidence the respondent could refund the decretal sum if the appeal succeeded. However, the application was not filed timeously, as there was a significant delay between judgment and the filing of the motion. On the issue of security, the court held that a fair order would be to require the applicant to deposit the decretal sum of Ksh 10,500,000 in an interest-earning joint account in the names of the advocates for both parties within 30 days, failing which the application would be deemed dismissed.
Court Disposition
Conditional stay of execution granted.
Orders
- Applicant to deposit the decretal sum of Ksh 10,500,000 in an interest-earning account in the joint names of the advocates within 30 days from the date of the ruling.
- In default of deposit, the motion dated 17.10.2017 will be deemed dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 598 OF 2010
TAIB ALI TAIB..............................................PLAINTIFF/RESPONDENT
-V E R S U S –
NATION MEDIA GROUP..............................DEFENDANT /APPLICANT
RULING
1. Nation Media group, the defendant/applicant herein, took out the motion dated 17th October 2017 in which it sought for the following orders:
1. THAT this application be certified as urgent and service at first instance be dispensed with.
2. THAT there be a stay of execution of the judgement delivered by this Honourable court on the 10th February 2017 pending the hearing and determination of this application inter-partes.
3. THAT there be a stay of execution of the aforementioned judgement pending the hearing and determination of the appeal filed.
4. THAT the cost of this application be provided for.
The motion is supported by the affidavit of Sekou Owino.
2. The respondents filed the replying affidavit of Taib Ali Taib to oppose the motion. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have also considered the rival oral submissions.
3) The applicant avers that the respondent has threatened to execute the decree, therefore there is need to maintain the status quoby granting an order for stay. It is also argued that unless the order is granted, the appeal will be rendered nugatory since the respondent will proceed with attachment. The respondent opposed the motion arguing that the application for stay was filed in bad faith and with the sole intention of preventing the respondent from enjoying the fruits of his judgment. The respondent also pointed out that if the court is to find merit in the application then the judgement sum must be deposited in court as a condition.
4) The principles to be considered in determining an application for stay are well stated under Order 42 of the Civil Procedure Rules. First, an applicant must show the substantial loss it would suffer if the order for stay is denied. Secondly, the application for stay should be filed without unreasonable delay. Thirdly that the court should consider the provision of security for the due performance of the decree.
5) On the first principle, the applicant is of the view that it would suffer substantial loss if the order for stay is denied because its assets will be attached ,which loss will be further compounded by the fact that there is no evidence that if the respondent is paid the decretal sum he would be in a position to refund if the appeal turns successful. The respondent on the other hand submits that, he is a person of means and able to refund the decretal sum if the appeal turns successful. With respect, I am convinced that the applicant has shown that it would suffer substantial loss if the order for stay of execution is denied.
6) The second principle is that the application should be filed without unreasonable delay. It is apparent on record, that judgement was delivered on 10. 02. 2017 while the motion was filed on 17. 10. 2017. I am satisfied that the motion was not timeously filed.
7) The third principle is the provision of security for the due performance of the decree. The applicant is saying that, it is willing to furnish security. The respondent on the other hand is saying that if this court is inclined to grant the order for stay then, the same should be granted on condition that the applicant pays the decretal sum. On my part, I think a fair order on the issue touching on security, is to order which I hereby direct, that the applicant deposits the decretal sum of Ksh 10,500,000/- in an interest earning account in the joint names of the advocates and or firms of advocates within 30 days from the date hereof. In default the motion dated 17. 10. 2017 will be deemed as having been dismissed
8) Costs of the motion to abide the outcome of the appeal.
Dated, Signed and Delivered in open court this 26th day of January, 2018.
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Appellant
..................................................... for the Respondent