[2016] KEHC 5810 (KLR)
The court found that the application for stay of execution was filed without inordinate delay and that the respondent had not demonstrated its ability to refund the decretal sum should the appeal succeed. Applying the principle that the evidential burden shifts to the respondent to show its resources once the...
Source-derived case information.
- Citation
- [2016] KEHC 5810 (KLR)
- Parties
- Appellant: Agricultural Development Corporation; Respondent: Rao Engineering
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 41 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agricultural Development Corporation
Appellant
Rao Engineering
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated substantial loss if stay of execution 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 application for stay of execution was filed without inordinate delay and that the respondent had not demonstrated its ability to refund the decretal sum should the appeal succeed. Applying the principle that the evidential burden shifts to the respondent to show its resources once the appellant expresses a reasonable fear of non-refund, the court concluded that the appellant had satisfied the requirements for stay under Order 42 Rule 6(2) of the Civil Procedure Rules. To balance the interests of both parties, the court granted the stay of execution on condition that the judgment sum be deposited in a joint interest-earning account of both counsels within 30 days,...
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Stay of execution granted on condition that the judgment sum be deposited in a joint interest earning account of both counsels within 30 days from the date hereof.
- In default of deposit, execution to issue.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. 41 OF 2015
AGRICULTURAL DEVELOPMENT CORPORATION....APPELLANT
VERSUS
RAO ENGINEERING .....................................................RESPONDENT
R U L I N G
1. The application dated 28/1/2016 principally seeks orders that this Honourable Court be pleased to grant orders that there be stay of execution of the Decree in Kitale Chief Magistrate's Court Civil No. 96 of 2014 under any terms and or conditions of stay that this court may find desirable or necessary pending the hearing and determination of this appeal against the said Decree and that orders of the Lower Court disallowing stay pending appeal be overturned or varied to that extend.
2. According to the affidavits in support, the applicant will suffer substantial loss if the judgment sum is paid as the Respondent would not be able to refund the same in the event that the appeal is successful, thus rendering the appeal nugatory. It is further stated that the appeal has been lodged expeditiously and that the appellant is willing to abide with any reasonable terms set by the court.
3. The application is opposed. It is stated in the replying affidavit that the application has no merits and is a delaying tactic meant to deny the Respondent the fruits of the judgment. That this being a monetary claim, the appeal cannot be rendered nugatory. That the applicant has not shown what substantial loss will be suffered if the application is not allowed as the Respondent is capable of refunding the decretal sum if the appeal is allowed.
4. Under Order42 rule 6(2)of the Civil Procedure Rules 2010 –
“(2) No order for stay of execution shall be made
under subrule (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.”
5. The application has been filed without inordinate delay. The judgment of the lower court was delivered on 19/8/2015. The appeal was filed on 10/9/2015 and the application for stay filed on 26/1/2015.
6. The Respondent has not demonstrated that it is capable of refunding the decretal sum if the appeal is successful. As stated by the Court of Appeal in the case of 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.”
7. To balance the interests of both parties, I allow the application on condition that the judgment sum be deposited in a joint interest earning account of both counsel for the parties herein within 30 days from the date hereof. In default execution to issue.
____________________
B. THURANIRA JADEN
JUDGE
Delivered and dated this 23rd day of march 2016.
____________________
B. THURANIRA JADEN
JUDGE