[2001] KEHC 501 (KLR)
The court found that the application for stay of execution was made without unreasonable delay and that the defendant has a right of appeal. The court recognized that granting a stay does not deprive the decree holder of the fruits of the judgment but merely delays execution, which can be compensated by interest if...
Source-derived case information.
- Citation
- [2001] KEHC 501 (KLR)
- Parties
- Plaintiff: 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
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Legal Topics
- Stay of Execution, Security for Costs, Appeals Process
- 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)
Plaintiff
Kenya Airways Corporation Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether security should be provided for the due performance of the decree.
- 3 Whether the application for stay was filed without unreasonable delay.
Ratio Decidendi
The court found that the application for stay of execution was made without unreasonable delay and that the defendant has a right of appeal. The court recognized that granting a stay does not deprive the decree holder of the fruits of the judgment but merely delays execution, which can be compensated by interest if the appeal fails. The court further held that security for the due performance of the decree is necessary to safeguard the interests of the plaintiffs. Accordingly, the court granted the stay of execution on condition that the defendant provides security in the form of a bank guarantee or insurance bond for Kshs. 500 million within 15 days.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- Stay of execution of the judgment entered on 23rd February 2001 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 IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO 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
(Suing on their behalf and on behalf of the ex-employees of Kenya Airways)
VERSUS
KENYA AIRWAYS CORPORATION
LIMITED………………………………...................……...…..…….DEFENDANT
R U L I N G
This is an application by way of Notice of Motion under Order 41 Rule 4 of the Civil Procedure Rules for orders that the judgment entered against the defendant herein on 23rd February, 2001 be stayed until the determination of the appeal therefrom. There is also a prayer for a stay of any further proceedings. The application is opposed.
Both learned counsel have ably presented their respective arguments and cited several authorities. I have read the said authorities. I also have in mind the guiding provisions and principles in respect of applications of this nature.
The application was filed on 9th march, 2001. It was therefore filed without unreasonable delay. The plaintiffs, it is true, have a valid judgment in their hands. This court however is not the final arbiter. I recognize the fact that I may have been wrong in the whole adjudication process. In such a case the aggrieved party should be given a chance to address the issues in the final court of justice.
An order for a stay of Execution does not deprive a decree hold of the fruits of the said decree. It merely delays such an execution in the event the appeal does not succeed, and, in a decree such as the one in issue, the delay can always be compensated by an award of interest.
The defendant has a right of appeal as a matter of right. That right should be exercised. I have considered the issue of security. An order of such nature should not be made where the liquidity of any party 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.
In view of the foregoing, the defendant’s application succeeds in terms 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 appeal. Orders accordingly.
Dated and delivered at Nairobi this 4th day of June 2001
A. MBOGHOLI MSAGHA
JUDGE