[2001] KEHC 21 (KLR)
The court found that the application for stay of execution was filed without unreasonable delay and that the defendant, as judgment debtor, has a right of appeal. The court recognized that an order for stay does not deprive the decree holder of the fruits of the judgment but merely delays execution pending appeal,...
Source-derived case information.
- Citation
- [2001] KEHC 21 (KLR)
- Parties
- Applicant: Tobias Ong'any Auma, Aaron Muisyo Mwailu, John Otieno Owili, Walter Ojwang' Awich, Fidelis Nthunthi, Henry Munene Karubiu (suing on their behalf and on behalf of the ex-employees of Kenya Airways); Defendant: Kenya Airways Corporation Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4434 of 1992
- Procedural Posture
- Civil Case / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of security.
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tobias Ong'any Auma, Aaron Muisyo Mwailu, John Otieno Owili, Walter Ojwang' Awich, Fidelis Nthunthi, Henry Munene Karubiu (suing on their behalf and on behalf of the ex-employees of Kenya Airways)
Applicant
Kenya Airways Corporation Limited
Defendant
Procedural Posture
Civil Case / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the judgment pending the determination of the appeal.
- 2 Whether security should be ordered as a condition for stay of execution.
- 3 Whether the application for stay was filed without unreasonable delay.
Ratio Decidendi
The court found that the application for stay of execution was filed without unreasonable delay and that the defendant, as judgment debtor, has a right of appeal. The court recognized that an order for stay does not deprive the decree holder of the fruits of the judgment but merely delays execution pending appeal, and that any delay can be compensated by an award of interest. The court held that security for the due performance of the decree is necessary to safeguard the interests of the decree holder. Accordingly, the court granted a stay of execution on condition that the defendant posts security by way of a bank guarantee or insurance bond in the sum of Kshs. 500 million within 15 days.
Court Disposition
Stay of execution granted on condition of security.
Orders
- Stay of execution of the judgment entered on 23rd February, 2001 is granted pending determination of the appeal.
- Defendant to post security by way of bank guarantee or insurance bond in the sum of Kshs. 500 million within 15 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
E HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 4434 of 1992
1 TOBIAS ONG'ANY AUMA
2 AARON MUISYO MWAILU
3 JOHN OTIENO OWILI
4 WALTER OJWANG' AWICH
5 FIDELIS NTHUNTHI
6 HENRY MUNENE KARUBIU...................................................APPLICANTS
(Suing on their behalf and on behalf of the ex-employees ofKenya Airways)
VERSUS
KENYA AIRWAYS CORPORATION LIMITED.............................. DEFENDANT
RULING
This is an application by way of Notice of Motion under Order41 Rule 4 of the Civil Procedure Rules for orders that the judgmententered against the defendant herein on 23rd February, 2001 be stayeduntil the determination of the appeal there from. There is also aprayer for as stay of any further proceedings. The application isopposed.
Both learned counsel have ably presented their respectivearguments and cited several authorities. I have read the said principles in respect of applications of this nature.
The application was filed on 9th march, 2001. It was thereforefiled without unreasonable delay. The plaintiffs, it is true, have avalid judgment in their hands. This court however is not the finalarbiter. I recognize the fact that I may have been wrong in the wholeadjudication process. In such a case the aggrieved party should begiven a chance to address the issues in the final court of justice.
An order for a stay of Execution does not deprive a decree holderof the fruits of the said decree. It merely delays such an execution inthe event the appeal does not succeed, and, in a decree such as theone in issue, the delay can always be compensated by an award ofinterest.
The defendant has a right of appeal as a matter of right. Thatright should be exercised. I have considered the issue of security. Anorder of such nature should not be made where the liquidity of anyparty may be adversely affected. The commercial sector has in my view developed sufficient instruments which ensure that the interests of both parties are taken into consideration of the prayers set out in the notice of motion filed on 9th March 2001. The defendant shall, however post security by way of either a Bank Guarantee OR insurance Bond in the sum of Kshs. 500 million. The said security shall be executed within 15 days of today. Costs of this application shall be on appealOrders accordingly. Dated and delivered at Nairobi this 4th day of June 2001
A. MBOGHOLI MSAGHA
JUDGE