[2025] KEHC 6794 (KLR)

[2025] KEHC 6794 (KLR)

The court found that the applicant satisfied all three conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The application was filed within a reasonable time, the applicant offered to deposit the entire decretal sum as security, and the respondent failed to...

Source-derived case information.

Citation
[2025] KEHC 6794 (KLR)
Parties
Appellant: Martha Wakiuru Wanjohi; Respondent: Bernard Nyakundi Isaac
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
26 May 2025
Case Number
Civil Appeal E140 of 2025
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Outcome
Application for stay of execution pending appeal allowed with conditions.
Judges
G Mutai
Legal Topics
Stay of Execution, Substantial Loss, Security for Due Performance, Burden of Proof, Appeal Process
Source Language
english
Civil Procedure Stay of Execution Substantial Loss Security for Due Performance Burden of Proof Appeal Process

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Summary, issues, holding and outcome

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Parties

Martha Wakiuru Wanjohi

Appellant

Bernard Nyakundi Isaac

Respondent

Procedural Posture

Civil Appeal / Ruling on Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
  2. 2 Whether the applicant will suffer substantial loss if stay is not granted.
  3. 3 Whether the application was filed without undue delay.

Ratio Decidendi

The court found that the applicant satisfied all three conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The application was filed within a reasonable time, the applicant offered to deposit the entire decretal sum as security, and the respondent failed to demonstrate his ability to repay the decretal sum if the appeal succeeded. The court held that the burden of proof regarding ability to repay shifted to the respondent once the applicant raised the issue, and the respondent did not discharge this burden. The court further emphasized that substantial loss is the central consideration in granting a stay, and in this case, the...

Court Disposition

Application for stay of execution pending appeal allowed with conditions.

Orders

  • Stay of execution of the judgment of the lower court granted pending appeal, on condition that the entire decretal sum is deposited in a joint interest-earning account in the names of both parties' counsel within 30 days.
  • In default of deposit, execution to issue forthwith.