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ELCPartially AllowedNot stated in judgment· [2019] KEELC 4039 (KLR)

Emilio Marangu M’Ndiiri v Anjero Munene Marindi & 4 others [2019] KEELC 4039 (KLR)

High Court of Kenya (as inferred; judgment does not state the court name)
27 March 2019
PNP. M. Njoroge
443 words in judgment
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The bottom line

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A Kenyan High Court dismissed a stay of execution because the applicant never deposited the ordered Kshs.1,000,000 security or served the other side.

What this practically means

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Executive summary

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This ruling by P. M. Njoroge, Judge, delivered at Chuka on 27th March, 2019, determined two post-judgment applications arising from a judgment delivered on 13th December, 2018. The first application, dated 10th January, 2019, sought stay of execution of that judgment. When it was filed, the court granted ex parte stay orders on conditions that the applicant deposit Kshs.1,000,000/= as security and serve the defendants with the orders. The applicant complied with neither condition. The defendants' advocate, Miss Njenga, told the court she was never served with the application and asked for both applications to be dismissed; the applicant offered only the nebulous explanation that his advocate was unavailable. The court held that Order 42 Rule 6 mandatorily requires the depositing of security where a stay of execution is allowed, and that since the conditional stay had been granted and the security was not deposited within the stipulated time, the application was not merited. The second application, dated 4th February, 2019, sought to have the firm of Ndorongo & Co. Advocates come on record in place of Mwenda Mwarania Akwalu & Co. Advocates, and sought review of the ruling delivered on 16th January, 2019. The court allowed the change of advocates but found prayers 3 and 4 (review) unmerited. The stay application was dismissed with no order as to costs since the defendants did not participate in its prosecution; prayers 3, 4 and 5 of the second application were dismissed with costs awarded to the defendants, prayer 2 (change of advocates) being allowed.

Key legal issues

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01

Effect of non-compliance with conditions attached to a stay of execution

Holding

A conditional stay lapses where the applicant fails to deposit the ordered security and serve the orders; the stay application cannot be sustained

Reasoning

The court had granted ex parte stay pending hearing on condition that the applicant deposit Kshs.1,000,000/= as security and serve the defendants. The applicant did neither. The court held that Order 42 Rule 6 mandatorily requires the depositing of security, and since the conditional stay was granted and security was not deposited within the stipulated time, the application for stay failed.

p. 1
02

Change of advocates on record after judgment

Holding

The court raised no objection to the firm of Ndorongo & Co. Advocates coming on record in place of Mwenda Mwarania Akwalu & Co. Advocates, noting the new firm would prosecute the matter at the Court of Appeal

Reasoning

The second application sought substitution of the firm on record. The court had no objection, observing that in view of the ruling dismissing the stay and review prayers, the new firm would prosecute the plaintiff's case on appeal at the Court of Appeal.

p. 1

Legal principles established

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  • Order 42 Rule 6 mandatorily requires the depositing of security as a condition of a stay of execution; failure to comply vitiates the stay

Court orders

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  1. 1.The application dated 10th January, 2019 is dismissed with no order as to costs, the defendants never having participated in its prosecution
  2. 2.Prayer 2 of the application dated 4th February, 2019 (change of advocates to Ndorongo & Co. Advocates) is allowed
  3. 3.Prayers 3, 4 and 5 of the application dated 4th February, 2019 are dismissed with costs awarded to the defendants
Jurisdiction invoked
Inherent jurisdiction over post-judgment interlocutory applications; Order 42 Rule 6 of the Civil Procedure Rules invoked regarding security for stay

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, "Emilio Marangu M’Ndiiri v Anjero Munene Marindi & 4 others [2019] KEELC 4039 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4039/eng@2019-03-27

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