[2024] KEHC 5720 (KLR)
The court found that the applicants had demonstrated sufficient grounds for the grant of a stay of execution pending appeal, particularly the risk that the appeal would be rendered nugatory if execution proceeded and the respondent was unable to refund the decretal sum. The court held that the interim stay and the...
Source-derived case information.
- Citation
- [2024] KEHC 5720 (KLR)
- Parties
- Applicant: Topsuit Apparel Limited; Applicant: Jared Nyameri; Respondent: David Konana Lenkaiyo
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E012 of 2024
- Procedural Posture
- Civil Appeal / Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal, subject to deposit of decretal sum as security.
- Judges
- F Gikonyo
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Topsuit Apparel Limited
Applicant
Jared Nyameri
Applicant
David Konana Lenkaiyo
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution pending appeal.
- 2 Whether sufficient security has been provided for the due performance of the decree.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that the applicants had demonstrated sufficient grounds for the grant of a stay of execution pending appeal, particularly the risk that the appeal would be rendered nugatory if execution proceeded and the respondent was unable to refund the decretal sum. The court held that the interim stay and the condition requiring deposit of the entire decretal sum in an interest earning account in the joint names of legal counsel for the parties constituted adequate security. The court emphasized that compliance with this condition would secure the decree and prevent substantial loss, thereby satisfying the requirements under Order 42 Rule 6 of the Civil Procedure Rules. In the event...
Court Disposition
Stay of execution granted pending appeal, subject to deposit of decretal sum as security.
Orders
- A stay of execution pending the hearing of this appeal is granted on condition that the applicants deposit the entire decretal sum in an interest earning account in the joint names of legal counsel for the parties within 30 days.
- If the decretal sum has already been deposited, the deposited funds constitute the security ordered herein.
Full Case Text
Judgment text and source record
27 paragraphs
Topsuit Apparel Limited & another v Lenkaiyo (Civil Appeal E012 of 2024) [2024] KEHC 5720 (KLR) (21 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5720 (KLR)
Republic of Kenya
In the High Court at Narok
Civil Appeal E012 of 2024
F Gikonyo, J
May 21, 2024
Between
Topsuit Apparel Limited
1st Applicant
Jared Nyameri
2nd Applicant
and
David Konana Lenkaiyo
Respondent
(Being an Appeal against the Orders/Directions issued by Hon. Daniel Nyayo given on 15th February, 2024 in NAROK SUCC. NO. E021 OF 2023)
Ruling
Stay of execution pending appeal 1. By a Notice of motion dated 11th march, 2024, the appellant is seeking a stay of execution pending the hearing of this appeal.
2. The major reason advanced is that there is imminent danger of execution of the judgment of the small claims court which will render their appeal nugatory as the respondent is not in a position to refund the sum if paid over. According to the appellant, the appeal has high chances of success as it relates to denial of opportunity to be heard.
3. On 9th April, 2024, the court granted a temporary stay of execution on condition that the applicant deposited the entire decretal sum in an interest earning account in the joint names of legal counsel for the parties herein within 30 days thereof.
4. The applicant averred in the application that he is ready, able and willing to abide by any conditions or provide any security as the court may determine.
5. In the circumstances of this case, the interim stay of execution and the terms issued earlier is sufficient security for purposes of stay of execution pending appeal as it secures the decree and prevents any substantial loss from occurring.
6. Accordingly, the court orders a stay of execution pending the hearing of this appeal on condition that the applicants deposit the entire decretal sum in an interest earning account in the joint names of legal counsel for the parties herein within 30 days of today. If they have deposited the decretal sum, the deposited funds constitute security ordered herein. Orders made under order 42 rule 6 of the Civil Procedure Rules.
7. In the event of default, the stay will automatically lapse without any necessity to apply.
8. Orders accordingly.
9. Date for ruling was taken in the presence of both legal counsel for the parties.
DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS ONLINE APPLICATION THIS 21ST DAY OF MAY, 2024. ------------------------------------F. GIKONYO MJUDGEIn the presence of:N/A for appellantN/A for respondentMr. Otolo - C/A