[2008] KEHC 450 (KLR)
The court found that the respondent not only had a judgment against the appellant but was also holding an immovable property as security for the due performance of the decree. The court considered that the respondent had made unsuccessful attempts to sell the property, and that the appellant had secured the lower...
Source-derived case information.
- Citation
- [2008] KEHC 450 (KLR)
- Parties
- Appellant: Zachary Machira Mwai; Respondent: Cooperative Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted until 31st January 2009; directions given for hearing of appeal; costs to abide outcome of judgment.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zachary Machira Mwai
Appellant
Cooperative Bank of Kenya Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the decree pending appeal.
- 2 Whether the application for stay was filed within reasonable time.
- 3 Whether the security held by the respondent is adequate for the due performance of the decree.
Ratio Decidendi
The court found that the respondent not only had a judgment against the appellant but was also holding an immovable property as security for the due performance of the decree. The court considered that the respondent had made unsuccessful attempts to sell the property, and that the appellant had secured the lower court proceedings in typed form. The only impediment to the hearing of the appeal was the absence of the lower court file. The court held that the just decision was to grant a stay of execution in CMCC No. 95 of 2005 to subsist up to 31st January 2009, to allow the appeal to be heard. The court also ordered that the lower court file be brought to the High Court for the hearing of...
Court Disposition
Stay of execution granted until 31st January 2009; directions given for hearing of appeal; costs to abide outcome of judgment.
Orders
- Stay of execution in Nyeri CMCC No. 95 of 2005 granted to subsist up to 31st January 2009.
- Lower court file No. 95 of 2005 to be brought to the High Court for hearing of the appeal on 15th January 2009.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 53 of 2007
ZACHARY MACHIRA MWAI ………………….. APPELLANT
Versus
COOPERATIVE BANK OF KENYA LTD … RESPONDENT
RULING
The appellant has brought a notice of motion dated 22nd September 2008. The same is brought under XLI Rule 4(1)(2) and (3) of the Civil Procedure Rules. The appellant seeks an order of stay of execution of the decree issued on 6th June 2007 in Nyeri CMCC No. 95 of 2005 pending the determination of this appeal. In the supporting affidavit the appellant deponed that the lower court judgment was delivered on 24th January 2007. He was aggrieved by that judgment and after obtaining leave of the court to file the appeal out of time did indeed file the appeal on 2nd July 2007. That the respondent in the meanwhile was in the process of executing that judgment which was for kshs. 2,586,267. 75. That the respondent was seeking the appellant arrest for failure to pay that amount. The appellant deponed that the respondent was holding as security title no. MWIYOGO/LABURA/BLOCK 11/18. The respondent opposed the application for stay. In opposition the respondent stated that the appellant had previously intended to settle the money advanced to him as an overdraft. He however failed to make the payment. In respect of the immovable property which was secured with the respondent it was stated that the respondent had made many attempts to sell the same but it had failed to attract reasonable bids. I have considered the application and the fact that the respondent not only has a judgment against the appellant but is also holding as security an immovable property. Order XLI provides that a court in considering whether to grant stay of execution should be satisfied that if stay was not granted substantial loss would be incurred and should also consider whether the application for stay was filed within reasonable time. The court can also order security for the due performance of a decree. The respondent has that security in the immovable property. It is considered that they have made attempts to sell it unsuccessfully. The appellant had secured the lower court’s proceedings in typed form. The only impediment to the hearing of this appeal is the absence of the lower court file. I find that the just decision of this court will be that a stay be granted in CMCC No. 95 of 2005 to subsist up to 31st January 2009. I order that the lower court file No. 95 of 2005 be brought to the High Court with a view to this appeal being heard on 15th January 2009. The appeal shall be heard by way of written submissions. The costs of the notice of motion dated 22nd September 2008 shall abide with the outcome of the judgment.
Dated and delivered this 15th day of December 2008
MARY KASANGO
JUDGE