[2007] KEHC 1032 (KLR)
The court held that the requirement for security for stay of execution under Order 41 rule 4 does not mandate cash deposit exclusively; any adequate security may suffice. The applicant demonstrated inability to deposit cash but offered a title deed for land valued at more than double the judgment sum, which the...
Source-derived case information.
- Citation
- [2007] KEHC 1032 (KLR)
- Parties
- Appellant: William Wachira; Respondent: Josphat Mugo Ndongi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Security for Stay of Execution
- Outcome
- Objection to application rejected; applicant allowed to provide title deed as security for stay of execution.
- Legal Topics
- Stay of Execution, Security for Stay, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Wachira
Appellant
Josphat Mugo Ndongi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Security for Stay of Execution
Legal Issues
- 1 Whether the appellate court can review the form of security required for stay of execution pending appeal.
- 2 Whether security for stay of execution must be in cash or can be substituted with other adequate security such as a title deed.
- 3 Whether the execution of the decree would render the appeal nugatory if stay is not granted.
Ratio Decidendi
The court held that the requirement for security for stay of execution under Order 41 rule 4 does not mandate cash deposit exclusively; any adequate security may suffice. The applicant demonstrated inability to deposit cash but offered a title deed for land valued at more than double the judgment sum, which the court found to be adequate security. The court further reasoned that execution of the decree would render the appeal nugatory, as the respondent would be unable to repay if the appeal succeeded. The appellate court has jurisdiction to review the form of security and is not bound by the lower court's decision on this issue. The objection to the application was therefore rejected,...
Court Disposition
Objection to application rejected; applicant allowed to provide title deed as security for stay of execution.
Orders
- The preliminary objection is rejected with costs to the applicant.
- The applicant is permitted to deposit the title deed of the specified parcel of land as security for stay of execution instead of cash.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 1 of 2006
WILLIAM WACHIRA …………………….………………………..APPELLANT
VERSUS
JOSPHAT MUGO NDONGI………………………..…………..RESPONDENT
RULING
This appeal is filed challenging the Ruling of P.T. Nditika dated and delivered on 28/12/2005 in Kerugoya Senior Resident Magistrate Civil Case No. 72 of 2004. In that ruling the Trial Magistrate dismissed the application by defendant to set aside Judgment already entered against the Defendant. That Judgment is still standing and valid. No appeal has been made against that Judgment. This Appeal is against the dismissal of the application to set aside that Judgment and unless the appeal is determined with success to the applicant, the Judgment shall be executed against the Applicant.
For this reason the Applicant applied for stay in the lower court and was granted conditional stay. The condition was that the Applicant do deposit Shs. 319,000/- into an interest earning joint account by the both advocates within 21 days from the date of ruling which was 8/3/2006. On 23. 3.2006 the Applicant made another application seeking review of the order made on 8. 3.2006 so as to allow the change of security from cash deposit ordered to depositing title Deed of a certain parcel of land named on account that the Applicant earns very little income as a teacher. This application was rejected by the lower court after lengthy argument by both parties. The applicant filed this appeal on 6/1/2006. Stay of Execution of Decree is governed by Order 41 rule 4 which provides that no appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except as in so far as the court appealed from may order, but the court appealed from many for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as many to it seem just. Any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. The issue of the application being res judicata is not applicable. The appellate court has jurisdiction to hear and decide on the matter again. Both parties were satisfied in the order of stay granted, it is only the issue of payment of deposit which appears to have become onerous to the Applicant. An application for execution by way of committal to civil jail (see Exhibit WW5) was made and he said if he is committed to jail, he would lose his employment as a teacher. He has property the piece of land he is offering to deposit Title Deed. The value of the land is disclosed as 750,000/-. He is not in a position to deposit cash ordered by court. The requirement for security on granting stay is contained under Order 41 rule 4 (2) “such decree or order as may ultimately binding on him has been given by the applicant. The order does not specify what security may be demanded. It is quite clear that a security other than cash may be taken so long as it is of adequate value.
Finally the appeal filed if successful would result in setting aside judgment entered against the applicant in this case. It is clear that if the execution was allowed the appeal would be rendered nugatory and as it was admitted by the Counsel of Respondent the Decree holder would not be able to repay if appeal was successful. The judicial process is not to be used to pass money from one pocket to another unless truly justified.
I therefore reject the P. O raised with costs to the Applicant.
Dated this 12th February, 2007.
J. N. KHAMINWA
JUDGE
12. 2.2007
Khaminwa – Judge
Njue – Clerk
Mr. Kariuki Advocate
Ruling read in open court.
J. N. KHAMINWA
JUDGE