Timothy Nyongesa Masinde & another v Humphrey Wachiye Machasio [2018] KEELC 3892 (KLR)
The bottom line
#The High Court refused a full stay of a money decree but gave the applicant 30 days to deposit the amounts owed before enforcement resumes.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution of a money decree should issue pending appeal
The court declined an outright stay but granted a conditional stay requiring the applicant to deposit the decretal amounts in interest-earning accounts and pay auctioneers' charges, failing which execution would proceed.
The court noted the decree was a money decree and that an appeal does not operate as a stay. Considering that the debt arose from a partnership in which all parties were involved, and that buildings constructed with the respondents' money stand on the applicant's land, the court crafted conditional terms: deposit of the decretal sums in interest-earning accounts within 30 days and payment of auctioneers' charges within 14 days of taxation, with automatic execution upon default.
Whether the applicant satisfied the principles for stay under Order 42 rule 6(1)(6)
The court found the applicant had not shown sufficient reason; the application was a repeat of a similar application dated 1st December 2017 which had yielded a conditional stay.
The respondent opposed, contending the applicant had not met the Order 42 rule 6(1)(6) principles and that a similar application of 1st December 2017 had already been granted more time until February 2018. The court observed that instead of pursuing the earlier application, the applicant filed a fresh application on 19/2/2018 seeking the same relief. The court found no sufficient reason to stay a money decree and tailored conditional relief instead.
Legal principles established
#- An appeal or second appeal does not operate as a stay of execution under Order 42 rule 6(1) of the Civil Procedure Rules.
Court orders
#- 1.The applicant to deposit Kshs.537,682/70 to the 1st respondent and Kshs.1,200,812/60 to the 2nd respondent in interest-earning accounts with each respondent within 30 days, pending the hearing of the alleged appeal
- 2.The applicant to pay the auctioneers' charges within 14 days if taxed, or 14 days after taxation
- 3.If the applicant fails to open the accounts or pay the auctioneers' charges, execution to be carried out without further reference to the court
- 4.Costs of the application awarded to the respondents
- On appeal from
- Court of Appeal (appeal filed, not yet determined)
- Jurisdiction invoked
- Article 159 of the Constitution; Sections 1A, 1B, 3 and 3A and Section 63(e) of the Civil Procedure Act; Order 10 rule 11 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timothy Nyongesa Masinde & another v Humphrey Wachiye Machasio [2018] KEELC 3892 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3892/eng@2018-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.