[2015] KEHC 4133 (KLR)

[2015] KEHC 4133 (KLR)

The court found that the applicant had demonstrated an arguable appeal and that execution of the judgment would render the appeal nugatory, thus satisfying the requirement of substantial loss. The applicant expressed willingness to provide security for the due performance of the decree. Although the applicant failed...

Source-derived case information.

Citation
[2015] KEHC 4133 (KLR)
Parties
Appellant: Zachary N. Njeru; Respondent: Felicitas Wambui Gathara
Court
High Court
Court Station
High Court at Embu
Jurisdiction
Kenya
Case Number
Civil Appeal 10 of 2015
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
application allowed
Judges
FN Muchemi
Legal Topics
Stay of Execution, Appeals Process, Security for Due Performance
Source Language
en
Civil Procedure Stay of Execution Appeals Process Security for Due Performance

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Parties

Zachary N. Njeru

Appellant

Felicitas Wambui Gathara

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for 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 is likely to suffer substantial loss if stay is not granted.
  3. 3 Whether the applicant has provided or is willing to provide security for the due performance of the decree.

Ratio Decidendi

The court found that the applicant had demonstrated an arguable appeal and that execution of the judgment would render the appeal nugatory, thus satisfying the requirement of substantial loss. The applicant expressed willingness to provide security for the due performance of the decree. Although the applicant failed to annex all relevant lower court documents and did not file submissions in response to the respondent's allegations of non-compliance, the court considered the admission in the defence that only part of the claim was owed as a triable issue. The court concluded that the requirements under Order 42 Rule 6(2) were met and that the application for stay of execution pending...

Court Disposition

application allowed

Orders

  • Stay of execution of the judgment and decree in Embu CMCC No. 263 of 2013 is granted pending the hearing and determination of the appeal.
  • Costs of the application are awarded to the applicant.