[2018] KEHC 9130 (KLR)
The court found that the application was unopposed and that the applicant had demonstrated apprehension that the appeal could be rendered nugatory if the decretal sum was not secured. In the absence of opposition and in the interests of justice, the court exercised its discretion to grant the orders sought, namely,...
Source-derived case information.
- Citation
- [2018] KEHC 9130 (KLR)
- Parties
- Applicant: Woodventure (K) Limited; Respondent: Technical Study Tours Limited; Respondent: Simon Kanani Sagana; Respondent: Ahmed Said Salam
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 254 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Stay and Deposit of Decretal Sum
- Outcome
- Application allowed as prayed with costs in the cause.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Woodventure (K) Limited
Applicant
Technical Study Tours Limited
Respondent
Simon Kanani Sagana
Respondent
Ahmed Said Salam
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Stay and Deposit of Decretal Sum
Legal Issues
- 1 Whether the court should order the return and deposit of the decretal sum in a joint interest earning account pending appeal.
- 2 Whether an order of stay of execution should be granted in respect of the balance of the decretal sum, interests, and costs pending appeal.
Ratio Decidendi
The court found that the application was unopposed and that the applicant had demonstrated apprehension that the appeal could be rendered nugatory if the decretal sum was not secured. In the absence of opposition and in the interests of justice, the court exercised its discretion to grant the orders sought, namely, the return and deposit of the decretal sum in a joint interest earning account and a stay of execution pending the determination of the appeal. The court was satisfied that these measures would secure the interests of both parties and preserve the subject matter of the appeal.
Court Disposition
Application allowed as prayed with costs in the cause.
Orders
- The decretal sum of Kshs. 537,852 to be returned by the 1st and 2nd respondents and deposited into a fixed deposit account in the joint names of the appellant’s and the 1st and 2nd respondents’ advocates pending the hearing and determination of the appeal.
- An order of stay of execution is issued in respect of the balance of the decretal sum, interests, and costs pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL CASE NO. 254 OF 2017
WOODVENTURE (K) LIMITED...........................................APPLICANT
VERSUS
TECHNICAL STUDY TOURS LIMITED.................1ST RESPONDENT
SIMON KANANI SAGANA.......................................2ND RESPONDENT
AHMED SAID SALAM..............................................3RD RESPONDENT
RULING
1. The application dated 6th July, 2017 seeks orders that this Honourable Court be pleased to order that the decretal sum of Kshs.537,852/= be returned by the 1st and 2nd Respondents and the same be deposited into a fixed deposit account in the joint names of the Appellant’s and the 1st and 2nd Respondents’ advocates pending the hearing and determination of this Appeal. Secondly that the Honourable Court be pleased to issue an order of stay of execution in respect of the balance of the decretal sum, interests and costs pending the hearing and determination of this Appeal. The third prayer is that the Honourable Court be pleased to issue an order for the balance of the decretal sum, interests and costs to be deposited in an interest earning account in the joint account of the Appellant and the 1st and 2nd Respondent’s Advocates.
2. It is stated in the affidavit in support that judgment of Ksh.576,920/= was entered in the Lower Court against the Applicants on 2nd October, 2015. That 75% being Kshs.532,852/= of the decretal sum was deposited in court pursuant to the orders issued by the Lower Court but that the same has been released to the 1st and 2nd Respondents . The Applicant is apprehensive that the appeal may be rendered nugatory as the 1st and 2nd Respondent may not be in a position to refund the decretal sum.
3. The application is not opposed. No papers were filed in opposition to the same.
4. During the hearing of the application the 1st and 2nd Respondents’ counsel confirmed that the application is not opposed. Consequently, I allow the application as prayed with costs in cause.
Dated, signed and delivered at Nairobi this16th day of May, 2018
B. THURANIRA JADEN
JUDGE