[2017] KEHC 9591 (KLR)
The court found that the applicants had expressed a reasonable fear of suffering substantial loss if execution proceeded, as the respondent had not provided evidence of her ability to refund the decretal sum. The legal burden shifted to the respondent to demonstrate her means, which she failed to do. The application...
Source-derived case information.
- Citation
- [2017] KEHC 9591 (KLR)
- Parties
- Applicant: Absolute Stocks Limited; Applicant: Andrew Ngure; Applicant: Roselyn Kamau; Applicant: Joseph Gogo; Respondent: Anne Wambui Mwenje
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 215 of 2017
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Absolute Stocks Limited
Applicant
Andrew Ngure
Applicant
Roselyn Kamau
Applicant
Joseph Gogo
Applicant
Anne Wambui Mwenje
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether security for due performance should be ordered as a condition for stay.
Ratio Decidendi
The court found that the applicants had expressed a reasonable fear of suffering substantial loss if execution proceeded, as the respondent had not provided evidence of her ability to refund the decretal sum. The legal burden shifted to the respondent to demonstrate her means, which she failed to do. The application for stay was made without unreasonable delay, and the applicants offered to deposit security. To balance the interests of both parties, the court granted a conditional stay of execution, requiring the applicants to deposit the decretal sum in a joint interest-earning account or in court within 30 days.
Court Disposition
application allowed with conditions
Orders
- Stay of execution of the judgment delivered on 7th April, 2017 is granted pending determination of the appeal, on condition that the applicants deposit the decretal sum in a joint interest-earning bank account of the counsels for both parties or in court within 30 days.
- Costs in cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 215 OF 2017
ABSOLUTE STOCKS LIMITED ........................................1ST APPLICANT
ANDREW NGURE .............................................................2ND APPLICANT
ROSELYN KAMAU.............................................................3RD APPLICANT
JOSEPH GOGO..................................................................4TH APPLICANT
VERSUS
ANNE WAMBUI MWENJE.....................................................RESPONDENT
RULING
1. The application dated 11th May 2017 seeks orders that a stay of execution of the judgment delivered on 7th April, 2017 in this suit be granted pending the hearing and determination of the Appeal filed against the said judgment.
2. It is stated in the affidavit in support that the judgment of the lower court was delivered on 7th April, 2017 for the sum of Ksh.3,079,710/=. The Applicants are aggrieved by the said judgment and have appealed herein. The Applicants are apprehensive that they will suffer substantial loss if execution proceeds as they may not be able to recover the decretal sum from the Respondent in the event that the appeal is successful. It is further stated that the Respondent’s sources of income are unknown. It is averred that the appeal has high chances of success and was filed without unreasonable delay. The Applicants are willing to deposit security.
3. The Application is opposed. It is stated in the replying affidavit that the Respondent is a person of means and is capable of reimbursing the decretal sum. According to the Respondent, the application herein is a delaying tactic. The Respondent further stated that if the application is allowed the Applicants should deposit the decretal sum in court.
4. Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides as follows:
“No order for stay of execution shall be made under sub-rule (1) unless –
(a)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
(b)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.”
5. On substantial loss, the Applicants have contended that the Respondent is not able to refund the decretal sum and the Applicants will therefore suffer substantial loss. As stated by the Court of Appeal in the case of Kenya Shell Limited vs. Kibiru (1986) KLR:
“Substantial loss in its various forms, is the cornerstone of the jurisdictions for granting a stay. That is what has to be prevented.”
6. The Respondent has not availed any documents in court to support the assertion that she is able to reimburse the decretal sum. As stated by the Court of Appeal in the case of Nairobi Civil Application 238 of 2005 (UR 144/2005) National Industrial Credit Bank Ltd. vs. Aquinas Francis Wasike & Another:-
“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 respondent or the lack of them. One 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 example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.”
7. The Applicants have offered to deposit security
8. To balance the interests of both parties herein, I allow the application on condition that the Applicants do deposit the decretal sum in a joint interest earning bank account of the counsels for both parties herein or in court within 30 days from the date hereof. Costs in cause.
Date, signed and delivered at Nairobi this 22nd day of Nov., 2017
B. THURANIRA JADEN
JUDGE