[2015] KEHC 2503 (KLR)
The court found that the application for stay of execution was made without delay and that the applicant had expressed a reasonable fear that execution would render the appeal nugatory. The respondent, while stating he was employed as a police officer, failed to provide sufficient details of his financial capacity...
Source-derived case information.
- Citation
- [2015] KEHC 2503 (KLR)
- Parties
- Appellant: Abimer Transporters Limited; Respondent: Haruna Mwenda Kaumbuthi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure, Substantial Loss, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abimer Transporters Limited
Appellant
Haruna Mwenda Kaumbuthi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the applicant has demonstrated substantial loss may result if stay is not granted.
- 3 Whether security for due performance of the decree should be ordered.
Ratio Decidendi
The court found that the application for stay of execution was made without delay and that the applicant had expressed a reasonable fear that execution would render the appeal nugatory. The respondent, while stating he was employed as a police officer, failed to provide sufficient details of his financial capacity to refund the decretal sum if the appeal succeeded. Applying the principles under Order 42 Rule 6 and relevant case law, the court held that the interests of justice would be served by granting a conditional stay of execution, requiring the decretal sum to be deposited in court or in a joint interest-earning account within 30 days, failing which execution would proceed.
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution granted on condition that the decretal sum is deposited in court or in an interest earning account in the names of both parties within 30 days from the date of the ruling.
- In default of deposit, execution to issue.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 25 OF 2014
ABIMER TRANSPORTERS LIMITED……………………………………………..… APPELLANT
VERSUS
HARUNA MWENDA KAUMBUTHI ....................................................................... RESPONDENT
(Being an appeal from the Judgment/decree/order of the Chief Magistrate’s Court at Machakos (Hon. Mwangi) delivered on the 6th day of February 2014 in Civil Case No. 748 of 2012)
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(Before B. Thuranira Jaden J)
R U L I N G
1. The application dated 26/3/2014 seeks orders of stay of execution of the lower court’s judgment issued in CMCC No. 748 of 2012.
2. It is stated in the affidavit in support that following the delivery of the judgment by the lower court, the Applicant has appealed against the whole of the said judgment. That the appeal has overwhelming chances of success. That the Applicant’s property is exposed to execution which may render the appeal nugatory. It is further deponed that the application has been made without delay.
3. The application is opposed. According to the replying affidavit the Applicant’s motor vehicle’s driver was convicted of the offence of careless driving on his own Plea of Guilty. That the Applicant did not call any witness to rebut the Respondent’s evidence. According to the Respondent, this application is a delaying tactic meant to deny him the fruits of this judgment. The Respondent further asserted that he is a police officer working for the Government of Kenya and is capable of refunding the decretal sum in the event that the appeal is successful. The Respondent urged this court to order that the whole decretal sum be deposited in court in the event that the application is allowed.
4. Directions were given that the application do proceed by way of written submissions. The Applicants filed theirs but the Respondent did not file any. I have considered the said submissions.
5. Under Order 42 rule 6 provides as follows:-
““No order for stay of execution shall be made undersubrule (1)unless –
The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
6. The lower court judgment was delivered on 6/2/2014 and the appeal lodged on 5/3/2014. There was no delay.
7. As stated by the Court of Appeal in Kenya Shell Ltd. Vs Kibiri & Another (1986) KLR:-
“In applications for stay the court should balance the parallel prepositions, first that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause and secondly that execution would render the proposed appeal nugatory.”
8. Although the Respondent has stated that he is capable of refunding the decretal sum, he has not given any details of his earnings. As stated by Court of Appeal in National Industrial Credit Bank Ltd –vs- Aquinas Francis Wasike & Another Civil Application Nai 238 of 2005 (UR. 144/2005):-
“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge – See for examplesection 112of theEvidence Act,Chapter 80 Laws of Kenya.”
9. The Respondent has not given any details of his resources save for status that he is employed in the public service. With the foregoing, I think the interests of justice will be served by the deposit of the decretal sum in court or in an interest earning account of both parties within 30 days from date hereof. In default execution to issue.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20thday of March2015.
………………………………………
B. THURANIRA JADEN
JUDGE