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ELCPartially Allowed· [2018] KEELC 3892 (KLR)

Timothy Nyongesa Masinde & another v Humphrey Wachiye Machasio [2018] KEELC 3892 (KLR)

High Court of Kenya
28 March 2018
545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The applicant moved the High Court at Bungoma under Article 159, Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Orders 10 rule 11 and 51 rule 1 of the Civil Procedure Rules, seeking a stay of proceedings and of execution pending the hearing of an intended appeal to the Court of Appeal. The only ground advanced was that the appeal had overwhelming chances of success and that the attachment of the applicant's property was irregular. The respondents opposed by replying affidavit, arguing the application lacked merit, that a similar application dated 1st December 2017 had already yielded an extension of time to February 2018, that the applicant should pursue stay in the Court of Appeal, and that the Order 42 rule 6(1)(6) principles had not been met. The court, per S. Mukunya J, noted this was a money decree arising from a partnership, with the decretal amounts of Kshs.537,682/70 and Kshs.1,200,812/60 owed to the 1st and 2nd respondents respectively. Restating that no appeal operates as a stay of execution, the court found no sufficient reason to stay a money decree outright. However, because the debt arose from a partnership and buildings constructed with the respondents' money stood on the applicant's land, it granted a conditional stay: deposit of the decretal sums in interest-earning accounts within 30 days and payment of the auctioneers' charges within 14 days of taxation, failing which execution would issue without further reference to the court. Costs of the application were awarded to the respondents.

Key legal issues

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01

Whether a stay of execution of a money decree should issue pending appeal

Holding

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.

Reasoning

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.

p. 2
02

Whether the applicant satisfied the principles for stay under Order 42 rule 6(1)(6)

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The applicant to pay the auctioneers' charges within 14 days if taxed, or 14 days after taxation
  3. 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. 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

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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, "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.