[2019] KEHC 5985 (KLR)
The court found that the appellants had demonstrated willingness to provide security for the decretal sum and that the appeal raised arguable issues. The court adopted its reasoning in a related matter, holding that a conditional stay of execution was appropriate to balance the interests of both parties. The...
Source-derived case information.
- Citation
- [2019] KEHC 5985 (KLR)
- Parties
- Appellant: Trakana Mombasa Ltd; Appellant: Deda Jaji Nzuiya; Respondent: Thomas Kibicho Chepkwony & Hellen Chepkwony (Suing as legal rep of Estate of Wilson Chepkwony)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 197 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- conditional stay of execution granted
- Judges
- RB Ngetich
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Conditions, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trakana Mombasa Ltd
Appellant
Deda Jaji Nzuiya
Appellant
Thomas Kibicho Chepkwony & Hellen Chepkwony (Suing as legal rep of Estate of Wilson Chepkwony)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the conditions imposed for stay of execution pending appeal are oppressive and defeat the right of appeal.
- 2 Whether the appellants should be required to deposit half the decretal amount or provide alternative security.
- 3 Whether the respondent's financial ability to refund the decretal sum if the appeal succeeds is relevant to the grant of stay.
Ratio Decidendi
The court found that the appellants had demonstrated willingness to provide security for the decretal sum and that the appeal raised arguable issues. The court adopted its reasoning in a related matter, holding that a conditional stay of execution was appropriate to balance the interests of both parties. The condition imposed was that the appellants deposit half the decretal amount in a joint interest earning account in the names of both advocates within 21 days. Failure to comply would entitle the respondent to proceed with execution. The court rejected the argument that the conditions were oppressive or defeatist of the appeal, finding them reasonable and in line with established legal...
Court Disposition
conditional stay of execution granted
Orders
- Stay of execution granted on condition that the applicant deposits half the decretal amount in a joint interest earning account in the names of both advocates.
- Deposit to be made within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO.197 OF 2018
TRAKANA MOMBASA LTD......................................................1ST APPELLANT
DEDA JAJI NZUIYA...................................................................2ND APPELLANT
-VERSUS-
THOMAS KIBICHO CHEPKWONY & HELLEN CHEPKWONY
(Suing as legal rep of Estate of WILSON CHEPKWONY)...........RESPONDENT
(Being an Appeal from the Judgment/Decree of Hon. Wahome, Chief Magistrate, Molo delivered on 11th December, 2018 in Molo CMCC No.126 of 2018)
RULING
1. This is a ruling on application dated 15th April 2019 which seeks stay of decree dated 19th March 2019 in Molo CMCC No.126 of 2018 and any consequential orders thereto. Grounds on the face of the application are that the applicant was granted conditional stay pending appeal in the trial court; condition being that they deposit half the decretal amount of kshs.1,298,460. 00
2. Further that the conditions for stay are oppressive, defeatist of the appeal lodged, and besides rendering the appeal nugatory, it will put the appellant to ruinous difficulties.
3. That payment of half decretal amount without security for it will amount to substantial satisfaction of the decree yet the respondent has not demonstrated ability to reimburse the money in the event that the appeal succeed.
4. That the terms for stay if not set aside will amount to compromise of the appellants right of appeal.
5. The application is supported by affidavit sworn by Caren Jaguga legal officer of the applicant’s insurer M/S Fidelity Insurance. She deponed that the appeal has been filed without delay, raises serious issues of law and should be heard on merit
6. She further averred that due substantial amount involved, the appellants are amenable to providing bank guarantee for performance of the decree or deposit part of the decretal amount in a joint interest earning account in the name of both Advocates; that no prejudice is likely to be occasioned to the respondent in the event the appeal succeeds; further that it is improper to impose terms tantamount to settling a judgment/decretal sum to a respondent with unascertained means before an appeal with high chances of success is heard and determined.
7. The legal officer further averred that that this matter is in the series of three matters which if judgments sum combined add up to kshs.10,765,415. 00.
RESPONDENT’S SUBMISSIONS
8. In response, the respondent submitted that the application is bad in law, made in bad faith, inept and lacks merit; an afterthought and amount to abuse of court process. The respondent averred that the applicant was heard on application for stay and orders granted with conditions.
9. Respondent averred that the appellant do not have a viable appeal and his evidence in the trial court included that of an eyewitness. He added that a bank guarantee or depositing money in an interest earning account would not be fair, as it will amount to delay of the judgment.
10. Respondent further averred that as a result of the accident, the deceased’s family have been subjected to great suffering. He urged court not to look at his financial ability but substance of appeal. He urged court to allow him proceed with execution.
ANALYSIS AND DETERMINATION
11. This matter is in a series of three files the other two being HCCA NO.197 and 198 all of 2018. I have made a finding in HCCA NO.198 OF 2018 which I adopt in this file. Orders are set out as hereunder:-
12. FINAL ORDERS
1. Stay of execution do issue on condition that the applicant do deposit half the decretal amount in a joint interest earning account in the name of both Advocates herein
2. Deposit to be done within 21 days from today’s date
3. Failure to comply with order 2 above execution process to proceed.
4. Mention after 30 days for directions on appeal.
Judgment Dated, signed and delivered at Nakuru this 27th day of June 2019.
……………………....
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF:-
Schola/Jenifer Court Assistant
Ms. Sambu Counsel for Appellant
Gekonga Counsel for Respondent