[2018] KEELC 3892 (KLR)
The court found that the applicant had not provided sufficient reason for an unconditional stay of execution of a money decree. However, considering that the debt arose from a partnership involving all parties and that the buildings constructed with the decree amounts are on the applicant's land, the court exercised...
Source-derived case information.
- Citation
- [2018] KEELC 3892 (KLR)
- Parties
- Plaintiff: Timothy Nyongesa Masinde; Plaintiff: Aston Wamalwa Masinde; Defendant: Humphrey Wachiye Machasio
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 30 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted subject to deposit of decretal sums and payment of auctioneers' charges; otherwise, execution to proceed.
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Money Decree, Partnership Disputes, Conditional Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Nyongesa Masinde
Plaintiff
Aston Wamalwa Masinde
Plaintiff
Humphrey Wachiye Machasio
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of a money decree pending appeal.
- 2 Whether the applicant has satisfied the legal requirements for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules.
- 3 Whether the circumstances of the partnership and property justify a conditional stay.
Ratio Decidendi
The court found that the applicant had not provided sufficient reason for an unconditional stay of execution of a money decree. However, considering that the debt arose from a partnership involving all parties and that the buildings constructed with the decree amounts are on the applicant's land, the court exercised its discretion to grant a conditional stay. The applicant is required to deposit the respective amounts owed to each respondent in an interest-earning account within 30 days and pay auctioneers' charges within 14 days of taxation. Failure to comply will result in execution proceeding without further reference to the court. The court emphasized that the applicant had already...
Court Disposition
Conditional stay of execution granted subject to deposit of decretal sums and payment of auctioneers' charges; otherwise, execution to proceed.
Orders
- The applicant shall deposit Kshs. 537,682.70 to the 1st respondent and Kshs. 1,200,812.60 to the 2nd respondent in interest-earning accounts within 30 days.
- The applicant shall pay auctioneers' charges within 14 days of taxation or within 14 days if already taxed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ELC. CASE NO. 30 OF 2012.
TIMOTHY NYONGESA MASINDE….……….1ST PLAINTIFF
ASTON WAMALWA MASINDE……………....2ND PLAINTIFF
VERSUS.
HUMPHREY WACHIYE MACHASIO………….DEFENDANT
R U L I N G
[1] This application is brought under article 159, Section 1A, 1B, 3 3A and 63(e) of the Civil Procedure Act order 10 rule 11 of the Civil Procedure Rules and order 51 rule 1 of the Civil Procedure Rules. The applicant prays for a stay of proceedings and further proceedings herein pending the determination of this application inter partes. He prays that there be a stay of execution pending the hearing and determination of a filed appeal to the Court of Appeal.
The only reason given for asking for a stay is that the appeal has overwhelming chances of success and that the attachment of the applicants property is irregular.
[2] The application is opposed by the respondent who have filed a Replying Affidavit and have said that the application lacks merit and should be dismissed with costs. Further that a similar application dated 1st December, 2017 was filed and more time was granted till February 2018. It is also stated that the applicant should seek a stay of the execution of the decree in the court of Appeal. Further that it is also contended that the applicant has not met the principles under order 42 rule (1) (6) of the Civil Procedure Rules.
[3] I have considered the Submission of the applicant and those of the respondent. This is a money decree. When the first application was made herein the parties agreed on a conditional stay against the attachment slated for 1st December, 2017 and the interim orders of 4th December 2017 were extended. The matter was to be mentioned in February, 2008 for further orders and that the auctioneers were to file their bill of costs by then. The applicant instead of pursuing the earlier application filed another application on 19/2/2018 asking for the same thing and that the decree of 3rd October, 2017 be stayed.
[4] Under order 42 rule 6(1) No appeal or second appeal shall operate as stay of execution. I personally have found no sufficient reason why a money decree should be stayed. But since this debt of Kshs.537,682/70 to the 1st respondent and Kshs.1,200,812/60 to the 2nd respondent arose out of a partnership that all parties herein were involved, and further that all the buildings that were constructed with that money of the 1st and 2nd respondents are on the applicants land and now form part of his land previously intended for all the parties, the applicant shall deposit the respective amounts in an interest earning account with each respondent pending the hearing of the alleged appeal within the next 30 days from today date.
He will pay the Auctioneers charges in the next 14 days if taxed, or 14 days after taxation. If he fails to open the accounts as aforesaid, or pay the auctioneers charges as aforesaid the execution will be carried out without further reference to court. I say so because he has had 6 months since 3rd October 2017 to do so and has not done so. The costs of this application shall be to the respondents.
Judgment read in open Court.
Dated at Bungoma this 28th day ofMarch, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Joy: Court Assistant
Mr. Murunga: For Mr. Khakula for Plaintiff respondent