PEMUGA AUTO SPARES & BARCLAYS BANK OF KENYA LTD v MARGARET KORIR TAGI [2011] KEHC 1706 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL APPEAL NO. 288 OF 2010

PEMUGA AUTO SPARES………………………………........…….1ST APPELLANT/APPLICANT

BARCLAYS BANK OF KENYA LTD……………...............………..2ND APPELLANT/APPLICANT

VERSUS

MARGARET KORIR TAGI……………………………………..…………………..RESPONDENT

RULING

This Ruling concerns and relates to an application by way of a Notice of Motion dated 10th February 2011 and filed on 11th February 2011 in which the Appellants/Applicants sought an order of stay pending appeal.

Following an ex parte hearing, I directed the Applicants to deposit the decretal sum of Ksh 1,434,725/= into court, which sum was duly deposited into court under Deposit Receipt No. B527413 of 24th February 2011.

The conditions for stay of execution are prescribed by Order 42, Rule 4(2) of the Civil Procedure Rules 2010. They are that -

(1)     the court is satisfied that substantial loss may result to the applicant unless the order is made,

(2)     the application has been made without unreasonable delay, and

(3)     such security as the court orders for the due performance of such decree or order as may immediately be binding on him has been           given by the applicant.

As the Applicant has already fulfilled the major condition for the grant of a stay, that is, deposited the decretal sum in court, there is no cause for discussing the other tests for granting a stay of execution.

I therefore allow the application in terms of prayer 4 thereof, and direct the Appellant do prepare and submit a Record of Appeal within the next sixty (60) days for perusal by a Judge before admission for hearing or summary rejection thereof. Costs hereof will be in the cause.

There shall be orders accordingly.

Dated, signed and delivered at Nakuru this 3rd day of June 2011

M. J. ANYARA EMUKULE

JUDGE