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ELCOtherChuka CMCC No. 195 of 2015 (application dated 31.7.2018)· [2018] KEELC 2042 (KLR)

Benson Murithi Rithaa v Stephen Muturi Nyaga [2018] KEELC 2042 (KLR)

High Court of Kenya at Chuka
1 August 2018
PNP.M. Njoroge
817 words in judgment
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The bottom line

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The High Court at Chuka paused execution of a judgment debt only after the appellant agreed to deposit KShs 500,000 as security within 14 days.

What this practically means

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Executive summary

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This is an ex parte ruling by the High Court at Chuka (P.M. Njoroge, J) on a notice of motion dated 31 July 2018 brought under Order 42, Rule 18 of the Civil Procedure Rules and section 65(1) of the Civil Procedure Act. The applicant, Benson Murithi Rithaa, sought a stay of execution of the decree issued following judgment in the CM's Court at Chuka on 4 July 2018, in a suit concerning land parcel L.R. KARINGANI/MUGIRIRWA/253 measuring 0.15 acres which he said he purchased from the respondent in 2014. He deponed that he had constructed a matrimonial home worth about Kshs. 3,000,000 on the land, that he and his family lived there, that the respondent had been bringing purchasers to view the property, and that the respondent's placing him on the land created an overriding interest in the title. He argued that his appeal was arguable and would be rendered nugatory if execution proceeded. Counsel, Mr. Kijaru, urged that refusal of the stay would cause irreversible loss. The court, taking judicial notice of the commencement of its recess, did not determine the application finally. It directed service on the plaintiff within 10 days, granted leave to respond, and granted prayer 2 (stay of execution) conditionally upon the applicant depositing Kshs. 500,000 in court as security within 14 days, failing which the stay would automatically lapse. The application was set down for inter partes hearing on 24 September 2018. No costs order was made.

Key legal issues

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Whether to stay execution of the decree pending appeal

Holding

Ex parte interim stay granted conditional upon a Kshs. 500,000 security deposit, with the application listed for inter partes hearing.

Reasoning

The court considered the pleadings and oral submissions, noting the applicant's claim that he occupied the suit land with a matrimonial home worth over Kshs. 3,000,000 and would suffer irreversible loss if execution proceeded. Rather than granting an unconditional ex parte stay, the court balanced urgency with the respondent's right to be heard by granting conditional interim relief and directing service and an inter partes hearing.

p. 2

Legal principles established

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  • A stay of execution pending appeal may be granted conditionally upon the applicant depositing security in court, with the stay lapsing automatically if the condition is not met.

Court orders

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  1. 1.This application should be served upon the plaintiff within 10 days of today.
  2. 2.Parties are granted open leave to respond, as and if necessary before the date the application will be heard interpartes.
  3. 3.Prayer 2 in the application is granted subject to the applicant depositing in the court's account as security the sum of Kshs. Five Hundred Thousand (Kshs.500,000/=) only within the next 14 days failing which the stay of execution granted herein will automatically lapse.
  4. 4.This application will be heard interpartes on 24th September, 2018.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42, Rule 18
  • Civil Procedure Actsection 65(1)
On appeal from
CM's Court, Chuka
Chuka CMCC No. 195 of 2015
Jurisdiction invoked
Order 42, Rule 18, Civil Procedure Rules; section 65(1) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benson Murithi Rithaa v Stephen Muturi Nyaga [2018] KEELC 2042 (KLR)", Case Analysis (2018). Chuka CMCC No. 195 of 2015 (application dated 31.7.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2042/eng@2018-08-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.