[2013] KEHC 2422 (KLR)
The court found that the applicant had demonstrated genuine financial incapacity to comply with the original order requiring deposit of the decretal sum as security for stay of execution. The applicant's ill health, loss of income due to demolition of her property, and the delay in compensation constituted...
Source-derived case information.
- Citation
- [2013] KEHC 2422 (KLR)
- Parties
- Applicant: Alice Gathigia Karuku; Respondent: Maisha Floor Mills
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 26 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Security for Stay of Execution
- Outcome
- application allowed in part
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Gathigia Karuku
Applicant
Maisha Floor Mills
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Security for Stay of Execution
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for review and substitution of the order requiring deposit of the decretal sum as security for stay of execution.
- 2 Whether the applicant's financial incapacity and anticipated compensation justify variation of the security terms.
Ratio Decidendi
The court found that the applicant had demonstrated genuine financial incapacity to comply with the original order requiring deposit of the decretal sum as security for stay of execution. The applicant's ill health, loss of income due to demolition of her property, and the delay in compensation constituted sufficient cause for review. The court determined that insisting on the cash deposit would be unjust and could result in undue hardship. Accordingly, the court exercised its discretion to set aside the previous order and substituted it with a requirement for the applicant to provide alternative security, such as a title deed, bank guarantee, or log book, thereby balancing the interests...
Court Disposition
application allowed in part
Orders
- The order requiring the applicant to deposit Kshs. 1,411,457 as security is set aside.
- The applicant is required to deposit in court any other form of security, including but not limited to a title deed, bank guarantee, or log book.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL NO. 26 OF 2011
ALICE GATHIGIA KARUKU …...............................APPLICANT
VERSUS
MAISHA FLOOR MILLS …................................RESPONDENT
RULING
The subject matter of this ruling is the summons dated 29th July, 2011 in which Alice Gathigia Karuku, the Applicant herein, sought for the following orders:
That this application be certified as urgent and be heard on priority basis.
That this honourable court do review and substitute the order made on the 6th June, 2011, with an order that the applicant do sign a personal bond undertaking to pay the decretal amount to the plaintiff/respondent, pending hearing and determination of this application inter parties and afterwards pending hearing and determination of the pending appeal.
That there be any other orders as this honourable court deems fit to grant, in the best interest of justice.
That cost of this suit be catered for.
The summons is supported by the affidavit of the Applicant. Maisha Floor Mills, the Respondent herein, resisted the summons by filing the replying affidavit of Charles Karweru.
It is the submission of Mr. Ombongi, that the Applicant is financially unable to deposit the decretal sum of Kshs. 1,411,457/= as ordered on 13th July, 2011. She argued that due to her ill health, she has had to spend a considerable amount of money on treatment. She also stated that her source of income i.e a Petrol station and residential homes along Nyeri-King'ong'o Road were demolished by the relevant authorities on allegations that the same stood on a road reserved. When it turned out that the demolitions were unlawful, the local authorities promised to compensate the Applicant. The Applicant made an undertaking to deposit the decretal sum thinking she would have been paid compensation for her demolished property but she was wrong. She was prompted to make the current application when she realized there may be delay in being paid.
The Respondent was of the view that the application is vexatious. It is also argued that the Applicant is not truthful because the information she has now presented to court was within her knowledge hence it cannot be used to assist her.
I have considered the rival submissions. What is clear in my mind is that the Applicant has come to court to seek the protection of this court from going to ruin. She has basically stated the reasons why she cannot fulful the promise she made in form of a court order which was recorded by consent. She had been given an order for stay of execution on condition that she deposits the deretal sum in court. I am with Mr. Karweru, learned counsel for the Respondent when he asserts that the application appears absurd because it is not clear whether the same can be treated as an application for review. I think I will look at the wider picture in this matter instead of legal technicalities. I have already stated that the Applicant is saying she is unable to raise the deretal sum within the specified time because she has no reliable source of income and that the anticipated compensation is likely to take long to be paid to her.
I am convinced, I should grant her the order. Consequently, I set aside the order requiring the Applicant to deposit a sum of Kshs. 1,411,457/= and substitute it with an order requiring her to deposit in court any other form of security to include but not limited to a title deed or a bank guarantee or log book etc. Costs of the summons to abide the outcome of the appeal.
Dated, signed and delivered this 23rd day of August, 2013
J.K. SERGON
JUDGE
In open court in the presence of Mr. Ombongi for Appellant
Kingori holding brief for Karweru for Respondent