[2017] KEHC 9621 (KLR)
The court found that the applicant filed the application for stay of execution without unreasonable delay and expressed a reasonable apprehension of substantial loss if execution proceeds, as the respondent's ability to refund the decretal sum was not demonstrated. The respondent failed to allay these fears or...
Source-derived case information.
- Citation
- [2017] KEHC 9621 (KLR)
- Parties
- Applicant: Alpine Coolers Limited; Respondent: Alfred Avukwi Miheso
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 152 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 Due Performance, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alpine Coolers Limited
Applicant
Alfred Avukwi Miheso
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules, 2010.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant filed the application for stay of execution without unreasonable delay and expressed a reasonable apprehension of substantial loss if execution proceeds, as the respondent's ability to refund the decretal sum was not demonstrated. The respondent failed to allay these fears or provide evidence of means to refund the sum if the appeal succeeded. The applicant offered to deposit security for the due performance of the decree. To balance the interests of both parties, the court granted the stay of execution on condition that the applicant deposits the decretal sum in an interest-earning joint bank account of the counsels or in court within 30 days. Costs...
Court Disposition
Application allowed with conditions.
Orders
- Stay of execution granted on condition that the applicant deposits the decretal sum in an interest-earning joint bank account of the counsels or in court within 30 days.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 152 OF 2017
ALPINE COOLERS LIMITED....................................................APPLICANT
VERSUS
ALFRED AVUKWI MIHESO..................................................RESPONDENT
RULING
1. The application dated 4th May 2017 seeks orders of stay of execution of the judgment and decree delivered on 6th March, 2017 pending the hearing and determination of the appeal filed herein.
2. It is stated in the affidavit in support that the judgment of the lower court was delivered on 6th March 2017 awarding the Respondent the sum of Ksh.213,596/= damages. The Applicant is aggrieved by the said judgment and has appealed herein. The Applicant is apprehensive that in the event the appeal succeeds he may suffer substantial loss if execution proceeds as the Respondent’s source of income is unknown. The Applicant is willing to deposit security for the due performance of the decree. It is further stated that the appeal has high chances of success.
3. The application is opposed. It is stated in the replying affidavit that the application is meant to delay the Respondent from reaping the fruits of his judgment. It is further stated that the appeal has no chances of success and if the order sought is granted, the Applicant should deposit security for the decretal sum.
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. The judgement of the lower court was delivered on 6th March, 2017. The application under consideration was filed on 5th April, 2017. There was no unreasonable delay.
6. The Applicant Company has stated that it is apprehensive that the Respondent may not be able to refund the decretal sum and will 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.”
7. The Respondent has not said anything to allay these fears. As stated by the Court of Appeal in the case of Nrb 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 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 example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.”
8. The Applicant has offered to deposit security.
9. To balance the competing interests of both parties, I allow the application on condition that the Applicant do deposit the decretal sum in an interest earning joint bank account of the counsels herein or in court within 30 days from date hereof. Costs in cause.
Dated, signed and delivered at Nairobi this 22nd day of Nov., 2017
B. THURANIRA JADEN
JUDGE