[2022] KEHC 12556 (KLR)
The court found that the applicant had sufficiently demonstrated that he would suffer substantial loss if the stay was not granted, as the respondent had not controverted the assertion that he would be unable to refund the decretal sum should the appeal succeed. The court was satisfied that the applicant's offer to...
Source-derived case information.
- Citation
- [2022] KEHC 12556 (KLR)
- Parties
- Applicant: Samuel Chege Wainaina; Respondent: Kennedy Kibiwott Kemboi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E452 of 2022
- Procedural Posture
- Civil Appeal / Stay Application Ruling
- Outcome
- Application for stay of execution pending appeal allowed, subject to conditions.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Chege Wainaina
Applicant
Kennedy Kibiwott Kemboi
Respondent
Procedural Posture
Civil Appeal / Stay Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to an order for stay of execution pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the application was properly brought under the correct provisions of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant had sufficiently demonstrated that he would suffer substantial loss if the stay was not granted, as the respondent had not controverted the assertion that he would be unable to refund the decretal sum should the appeal succeed. The court was satisfied that the applicant's offer to deposit the decretal sum as security met the requirements for granting a stay of execution. The technical objection regarding the citation of the wrong provision was not fatal to the application. Accordingly, the court allowed the application for stay of execution pending appeal, conditional upon the applicant depositing the decretal sum in court within 30 days.
Court Disposition
Application for stay of execution pending appeal allowed, subject to conditions.
Orders
- An order for stay of execution pending appeal is granted on condition that the applicant deposits the decretal sum in court within 30 days.
- In default of deposit, the order for stay shall automatically lapse.
Full Case Text
Judgment text and source record
24 paragraphs
Wainaina v Kemboi (Civil Appeal E452 of 2022) [2022] KEHC 12556 (KLR) (Civ) (25 August 2022) (Ruling)
Neutral citation: [2022] KEHC 12556 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E452 of 2022
JK Sergon, J
August 25, 2022
Between
Samuel Chege Wainaina
Applicant
and
Kennedy Kibiwott Kemboi
Respondent
Ruling
1. Samuel Chege Wainaina, the applicant herein, took out the motion dated 28/6/2022 whereof he sought for an order for stay of execution of the trial court’s decree in Milimani S.C.C.C No. 782 of 2021. The application is supported by the affidavit sworn by Harriet Sang. Kennedy Kibiwott Kemboi, the respondent herein filed the replying affidavit sworn Sarwa Duncan to oppose the motion.
2. I have considered the grounds stated on the motion dated June 28, 2022 and the facts deponed in the rival affidavits. It is the averment that on May 30, 2022 the trial court delivered judgment in favour of the respondent and against the appellant in the sum of ksh.151,960/=.
3. The applicant avers that he is aggrieved by the decision of the trial court hence this appeal. He now avers that unless an order for stay is granted he will suffer substantial loss in that the respondent is not in a financial position to make a refund. He offered to give a bank guarantee as security for the due performance of the decree.
4. The respondent opposed the motion stating that the same is vexatious hence it should be struck out. He argued that the application is premature since no appeal has been preferred nor execution commenced. The respondent stated that the applicant has not shown the substantial loss he would suffer if the order for stay of execution is denied.
5. He also pointed out that the court has been wrongly moved under Order 40 of the Civil Procedure Rules instead of Order 42 of the Civil Procedure Rules.
6. Having considered the rival averments, it is apparent that the respondent has not controverted the assertion by the applicant that if the decretal sum is paid to the respondent, the respondent will not be in a financial position to make a refund of the money if the appeal turns successful. In the circumstances, I am satisfied that he will suffer substantial loss if the order for stay is not granted.
7. In the end, I find the motion dated June 28, 2022 to be meritorious. It is allowed. Consequently, an order for stay of execution pending appeal is granted on condition that the applicant deposits the decretal sum in court within 30 days. In default, the order for stay shall automatically lapse. Costs of the motion to abide the outcome of the appeal.
8. To avoid this appeal procrastinating further, I direct the appellant to file and serve the record of appeal within 30 days from today’s date. Mention on 29/9/2022 for purpose of confirming compliance and thereafter to have the appeal admitted to hearing and to give further orders and directions on the hearing of the same. Costs to abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF AUGUST, 2022. J. K. SERGONJUDGEIn the presence of:………………………………. for the Applicant………………………………. for the Respondent