ZACHARY MACHIRA MWAI v COOPERATIVE BANK OF KENYA LTD [2008] KEHC 450 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Civil Appeal 53 of 2007

ZACHARY MACHIRA MWAI ………………….. APPELLANT

Versus

COOPERATIVE BANK OF KENYA LTD … RESPONDENT

RULING

The appellant has brought a notice of motion dated 22nd September 2008.  The same is brought under XLI Rule 4(1)(2) and (3) of the Civil Procedure Rules.  The appellant seeks an order of stay of execution of the decree issued on 6th June 2007 in Nyeri CMCC No. 95 of 2005 pending the determination of this appeal.  In the supporting affidavit the appellant deponed that the lower court judgment was delivered on 24th January 2007.   He was aggrieved by that judgment and after obtaining leave of the court to file the appeal out of time did indeed file the appeal on 2nd July 2007.  That the respondent in the meanwhile was in the process of executing that judgment which was for kshs. 2,586,267. 75.  That the respondent was seeking the appellant arrest for failure to pay that amount.   The appellant deponed that the respondent was holding as security title no.  MWIYOGO/LABURA/BLOCK 11/18.  The respondent opposed the application for stay.  In opposition the respondent stated that the appellant had previously intended to settle the money advanced to him as an overdraft.  He however failed to make the payment.  In respect of the immovable property which was secured with the respondent it was stated that the respondent had made many attempts to sell the same but it had failed to attract reasonable bids.  I have considered the application and the fact that the respondent not only has a judgment against the appellant but is also holding as security an immovable property.  Order XLI provides that a court in considering whether to grant stay of execution should be satisfied that if stay was not granted substantial loss would be incurred and should also consider whether the application for stay was filed within reasonable time.  The court can also order security for the due performance of a decree.  The respondent has that security in the immovable property.  It is considered that they have made attempts to sell it unsuccessfully.   The appellant had secured the lower court’s proceedings in typed form.  The only impediment to the hearing of this appeal is the absence of the lower court file.  I find that the just decision of this court will be that a stay be granted in CMCC No. 95 of 2005  to subsist up to 31st January 2009.  I order that the lower court file No. 95 of 2005 be brought to the High Court with a view to this appeal being heard on 15th January 2009.  The appeal shall be heard by way of written submissions.  The costs of the notice of motion dated 22nd September 2008 shall abide with the outcome of the judgment.

Dated and delivered this 15th day of December 2008

MARY KASANGO

JUDGE