Benson Murithi Rithaa v Stephen Muturi Nyaga [2018] KEELC 636 (KLR)
The bottom line
#A Kenyan court confirmed that security for stay of execution must be money paid into court, but reduced the required deposit from Kshs. 500,000 to Kshs. 400,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the security for stay of execution could be varied or substituted with non-monetary security
The application seeking to set aside the security order was dismissed; security remains mandatory, but the court varied the quantum from Kshs. 500,000 to Kshs. 400,000 in exercise of judicial discretion
The court held that Order 42 rule 6(2)(b) mandatorily requires security for due performance of the decree, and the security requirement breaches no constitutional or statutory provision despite reliance on Articles 48 and 159(2)(a). However, the court exceptionally exercised its discretion to reduce the amount from Kshs. 500,000 to Kshs. 400,000, coupled with a direction to file the Record of Appeal within 14 days.
Whether the applicant had an extant stay order
No extant stay existed because the applicant failed to deposit the ordered security within 14 days
Since the 1st August 2018 ruling required deposit of Kshs. 500,000 within 14 days failing which stay would automatically lapse, and the applicant did not comply, the stay had lapsed by the time of this application. The court nonetheless retained discretion to vary the security condition going forward.
Whether the applicant's inability to raise Kshs. 500,000 breached his right of access to justice under Articles 48 and 159(2)(a)
Rejected - the requirement to deposit security is a legal requirement and its imposition does not breach any constitutional or statutory provision
The applicant argued that his net pay of Kshs. 19,000 as a teacher made the security an impediment to access to justice contrary to Article 48 and Article 159(2)(a) on justice irrespective of status, and invoked Article 40(3)(b) on deprivation of property. The court held that deposit of security under Order 42 rule 6(2)(b) is mandatory and constitutionally unobjectionable.
Legal principles established
#- Order 42 rule 6(2)(b) makes the giving of security a mandatory requirement, and requiring a deposit as security does not breach any constitutional or statutory provision
- A court that has pronounced a ruling on security would be entitled to declare itself functus officio, though it retains judicial discretion to vary the quantum of security
- Payslips cannot suffice as a deposit for security
Court orders
#- 1.The application dated 17th August 2018 is dismissed with costs to be in the cause
- 2.The order of 1st August 2018 varied so that the applicant deposits as security in the court's account the sum of Kshs. 400,000 within the next 14 days failing which the stay of execution will automatically lapse
- 3.The appellant is directed to file his Record of Appeal within 14 days from 25th October, 2018
- On appeal from
- Senior Principal Magistrate's Court at Chuka
- Civil Suit No. 195 of 2015
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; sections 3A and 63(e) of the Civil Procedure Act; Articles 25(c), 40, 48 and 159(2)(a) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Murithi Rithaa v Stephen Muturi Nyaga [2018] KEELC 636 (KLR)", Case Analysis (2018). Chuka ELC Civil Appeal Case No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/636/eng@2018-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.