[2008] KEHC 3777 (KLR)
The court found that the applicant, an incorporated company engaged in road construction, would suffer substantial loss if its graders were impounded, potentially bringing its business to a standstill and causing contractual consequences. Although the applicant did not offer security, the court exercised its...
Source-derived case information.
- Citation
- [2008] KEHC 3777 (KLR)
- Parties
- Plaintiff: TM-AM Construction Group (Africa); Defendant: County Council of Muranga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal upon deposit of security.
- Legal Topics
- Stay of Execution, Security for Stay, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
TM-AM Construction Group (Africa)
Plaintiff
County Council of Muranga
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has shown sufficient cause for grant of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was brought without inordinate delay.
Ratio Decidendi
The court found that the applicant, an incorporated company engaged in road construction, would suffer substantial loss if its graders were impounded, potentially bringing its business to a standstill and causing contractual consequences. Although the applicant did not offer security, the court exercised its discretion to grant a stay of execution on the condition that the applicant deposits Kshs. 4.5 million in an interest-earning account held jointly by the advocates for both parties within 21 days. Failure to comply would result in the lapse of the stay. The court did not make any order regarding the already impounded assets.
Court Disposition
Conditional stay of execution granted pending appeal upon deposit of security.
Orders
- Stay of execution of the ruling given on 26/3/2009 is granted pending hearing and determination of the appeal, on condition that the applicant deposits Kshs. 4.5 million in an interest-earning account held jointly by advocates for both parties within 21 days.
- In default of making the deposit within 21 days, the stay granted shall lapse.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 50 of 2009
TM-AM CONSTRUCTION GROUP (AFRICA) …..………. PLAINTIFF
VERSUS
COUNTY COUNCIL OF MURANGA …………………...DEFENDANT
R U L I N G
Application brought under Order XLI Rule 4 and 6, Order L Rule 1, Civil Procedure Act, Section 3 A. Orders sought is stay of execution of ruling given on 26/3/2009 in this case pending the hearing and determination of the appeal lodged in Court of Appeal and that the properties impounded by the respondent be preserved or returned to the applicant pending the hearing of this application.
The grounds on which the application is based is that the applicant has filed an appeal in Court of Appeal and that the respondents have impounded the applicant’s graders and they intend to impound more on the road construction site unless the stay is granted, the appeal shall be rendered nugatory.
That finally the applicant has an arguable appeal. The supporting affidavit shows that the applicant did file a Notice of Appeal dated 1/4/2009 which was filed and lodged in the court registry.
That the respondent has impounded two M Graders No.KW 9034 and KRW 125 the property of applicant. That if the orders are not granted the applicant shall suffer loss.
It is the court’s observation that Order 41 Rule 4 empowers the court to grant stay pending appeal on certain conditions;
1. That the application shows sufficient cause for stay;
2. And that no stay shall be granted unless the applicant shows that if no order is granted substantial loss shall be suffered and that the application is brought without inordinate delay;
3. That the applicant shall give security for any order that may be ultimately be binding on him. In this matter the applicant is an incorporated company doing road construction works in Muranga District. No doubt if the graders were to be impounded the business may come to a standstill causing contractual consequences on the contractor’s part.
This point has not been emphasized in their arguments. Furthermore, the respondent is a local authority and it was not emphasized that they may not afford to pay the plaintiff if the appeal was successful. No security has been offered.
Nevertheless, to avoid causing inconvenience and loss to the plaintiff/applicant, it is my view that the applicant may have stay if it pays Kshs.4. 5 million which shall be deposited in an interest earning account to be held jointly by advocates for applicant and the respondent pending hearing and determination of appeal. I say nothing regarding the impounded assets. In default of making deposit within 21 days from today, the stay granted shall lapse.
It is so ordered.
DATED and DELIVERED at Nairobi this 19th day of May 2008.
JOYCE N. KHAMINWA
JUDGE