[2019] KEHC 4965 (KLR)
The court found that the applicant had taken prompt steps to appeal and seek stay, and had demonstrated an arguable appeal. The applicant's offer to deposit the decretal sum as security was deemed satisfactory and in accordance with the law. The court held that the conditions for granting a stay of execution pending...
Source-derived case information.
- Citation
- [2019] KEHC 4965 (KLR)
- Parties
- Applicant: Victory Construction Company Limited; Respondent: Mars Security Guards Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 51 of 2019
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- application_allowed_with_conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeal Process, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victory Construction Company Limited
Applicant
Mars Security Guards Limited
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for stay of execution of the lower court judgment pending appeal.
- 2 Whether the offer to provide security is adequate and in line with legal requirements.
Ratio Decidendi
The court found that the applicant had taken prompt steps to appeal and seek stay, and had demonstrated an arguable appeal. The applicant's offer to deposit the decretal sum as security was deemed satisfactory and in accordance with the law. The court held that the conditions for granting a stay of execution pending appeal had been met, provided that the applicant deposits the decretal sum in an interest-earning account in the names of both parties' advocates within 30 days.
Court Disposition
application_allowed_with_conditions
Orders
- The application for stay of execution is allowed on condition that the applicant deposits the decretal sum in an interest-earning account in the names of both advocates within 30 days.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 51 OF 2019
VICTORY CONSTRUCTION COMPANY LIMITED..................APPLICANT
VERSUS
MARS SECURITY GUARDS LIMITED..................................RESPONDENT
RULING
There is a judgment in favour of the respondent in the lower court delivered on 10th January, 2019. The appellant herein was aggrieved by the said judgment and lodged a Memorandum of Appeal on 5th February, 2019.
Two days after the filing of the Memorandum of Appeal the appellant filed the present application. The steps taken by the appellant were timeous. The application before me seeks a stay of execution of the lower court judgment pending the hearing and determination of the appeal. The application is by way of Notice of Motion under Sections 1A, 1B, 3A and 65 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules.
The application is supported by an affidavit sworn by a director of the applicant, to which there is a replying affidavit sworn by an accountant of the respondent opposing the application, followed by a supplementary affidavit to the supporting affidavit.
The applicant is bound to show that substantial loss may follow if the order is not granted. I have considered the Memorandum of Appeal and I believe there is an arguable appeal. The applicant has offered to post security within a reasonable time, and I believe that is a satisfactory offer in line with the provisions of law relating to stay of execution.
Accordingly, this application is allowed on condition that, the applicant shall deposit the decretal sum in an interest earning account, in the names of both advocates for the parties within 30 days from the date of this ruling. The cost shall be on appeal.
Dated, signed and delivered at Nairobi this 24th Day of July, 2019.
A.MBOGHOLI MSAGHA
JUDGE