Automated Summary
Key Facts
The High Court of Kenya granted a stay of execution pending appeal in the case of Kericho Technical Institute v Finmax Community Based Group & 3 others. The stay was conditioned on the Applicants depositing Kshs.5 Million within 30 days and a bank guarantee for the remaining decretal sum of Kshs.11,261,901.28 (plus costs and interest) within seven days. The Applicants, a community-based group, argued that execution would paralyze their operations and cause financial loss, while the Respondent sought to enforce the judgment immediately. The court found the application was filed without unreasonable delay and the Applicants met the threshold for a stay.
Issues
The court determined whether the Defendants/Applicants satisfied the conditions for a stay of execution pending appeal as outlined in Order 42 Rule 6(2) of the Civil Procedure Rules, including the potential for substantial loss, absence of unreasonable delay, and provision of security. The court found that these conditions were met and granted the stay with specific financial requirements.
Holdings
The court granted the stay of execution pending appeal on the condition that the Defendants/Applicants deposit Kshs.5 Million in court within 30 days and provide a bank guarantee for the remaining decretal sum within seven days. The court found that the applicants met the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules, including demonstrating potential substantial loss, timely filing, and willingness to provide security. Additionally, the court directed the applicants to fast-track their appeal in the Court of Appeal and ordered the costs of the application to abide by the appeal.
Remedies
- The court granted a stay of execution pending appeal, requiring the Defendants/Applicants to deposit Kshs.5 Million within 30 days and a bank guarantee for the remaining decretal sum within 7 days.
- The court directed the Defendants/Applicants to fast track their appeal in the Court of Appeal.
- The costs of the application are to abide the outcome of the appeal.
- The Defendants/Applicants must deposit Kshs.5 Million in the court within 30 days from the ruling date.
- A bank guarantee from a reputable bank for the remaining decretal sum must be deposited within seven (7) days.
Monetary Damages
15000000.00
Legal Principles
The court applied Order 42 Rule 6 (2) of the Civil Procedure Rules, which requires establishing three conditions for a stay of execution: (1) substantial loss if the stay is not granted, (2) application made without unreasonable delay, and (3) provision of security for the decree. The court determined these conditions were met in the case.
Precedent Name
- Mediratta v KCB & Others
- Century Oil Trading Company Ltd vs. Kenya Shell Ltd
Cited Statute
Civil Procedure Rules
Judge Name
H.I. Ong'udi
Passage Text
- I find that the Defendants/Applicants have met the necessary requirement for grant of stay of execution pending appeal as provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules. In the circumstances, I grant the stay pending appeal on condition that the Defendants/Applicants deposit Kshs.5 Million in this Court. This should be complied within 30 days from today.
- Considering its position and the support it gives to the community if its property is proclaimed and later sold it would be brought to its knees and the essential service it offers to the community would be negatively affected. To my mind this would amount to financial substantial loss.
- Secondly, for the balance of the decretal sum the Defendants/Applicants will deposit in this court a bank guarantee from a reputable bank within seven (7) days.