[2007] KEHC 1619 (KLR)
The court found that the appellant had already deposited the decretal sum as security in a joint advocates account, and that the respondent only proceeded with execution because the appellant's counsel failed to release the sum after the appeal was dismissed. The court held that there was no justification for...
Source-derived case information.
- Citation
- [2007] KEHC 1619 (KLR)
- Parties
- Appellant: Valley Bakery; Respondent: Patrick Wafula Mudogo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 113 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution dismissed with costs to the respondent
- Judges
- FI Koome
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Valley Bakery
Appellant
Patrick Wafula Mudogo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal to the Court of Appeal.
- 2 Whether the appellant has demonstrated substantial loss or that the appeal would be rendered nugatory unless stay is granted.
- 3 Whether security for due performance of the decree should be ordered.
Ratio Decidendi
The court found that the appellant had already deposited the decretal sum as security in a joint advocates account, and that the respondent only proceeded with execution because the appellant's counsel failed to release the sum after the appeal was dismissed. The court held that there was no justification for granting a further order for security or stay of execution when the appellant had failed to comply with an earlier order to release the security. The court was not satisfied that substantial loss would result to the appellant or that the appeal would be rendered nugatory. Accordingly, the court declined to exercise its discretion in favour of the appellant and dismissed the...
Court Disposition
application for stay of execution dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL 113 OF 2005
(Being an appeal from the judgment/decree of Hon. A. B. M. Mongare – R. M. Nakuru delivered on 9th June, 2005 in Nakuru CMCC No. 2348 of 2003)
VALLEY BAKERY……………………….….…....…………….APPELLANT
VERSUS
PATRICK WAFULA MUDOGO……………..….…………..RESPONDENT
RULING
By a judgment delivered on 25th May 2007 the appellant’s appeal was dismissed with costs to the respondent. On 6th June 2007 the appellant filed a notice of appeal against that judgment. The appellant also filed an application by way of notice of motion seeking for orders of stay of execution pending the hearing and determination of the appeal preferred in the Court of Appeal. The reasons advanced by the applicant are stipulated in the body of the application and elaborated in further detail in the supporting affidavit of Joseph Mongare Apondi sworn on 11th June 2007. The gist of the matters deposed thereto is that the applicant’s motor vehicle registration No. KAN 476Z was attached before a decree was issued. Secondly the appellant has preferred an appeal against the judgment which has overwhelming chances of success. Unless the decree is stayed the appeal will be rendered nugatory and the appellant will suffer irreparable loss as they stand to lose the motor vehicle which will be disposed of any time. The applicant averred that they were ready to deposit security to secure the decretal sum as indeed the decretal sum emanating from the first judgment by the Chief Magistrate’s Court was deposited in the joint advocates account.
The application was opposed by counsel for the respondent who argued that should the court exercise its discretion to grant the stay the decretal sum of Kshs 64,700/- with interest should be provided as well as security for the costs in the High Court. Further more the execution became necessary when counsel for the applicant failed to release the sum held as security.
The principles to bring to bear when determining whether the court should exercise its discretion to grant the order of stay of execution are that the court must be satisfied that substantial loss, or the appeal would be rendered nugatory unless the order is granted. Secondly the court should order security for due performance of the decree. This must also be considered alongside other circumstances of each case including the fact that a successful party is also entitled to the fruits of his litigation. In this case, the decretal sum is a partly sum of Kshs 64,700/- with costs. This sum of money was deposited with counsel for both the appellant and the respondent. If counsel for the appellant had co-operated to release the sum deposited as security when the appeal was dismissed, it would not have been necessary for the respondent to execute the decree by way of attachment of the motor vehicle. If the counsel failed to comply with an earlier order to release the security, I do not see why this court should exercise its discretion to order for security once more, when the appellant failed with no reason to comply with the earlier order. I am not inclined to exercise my discretion in favour of the application which I hereby dismiss with costs to the respondent.
Ruling read and signed on 9th day of November, 2007
M. KOOME
JUDGE