[2018] KEHC 2576 (KLR)
The court found that the applicant had demonstrated willingness to deposit the decretal sum as security for due performance of the decree, which is a key requirement for granting a stay of execution pending appeal. The court also considered the dispute over the interest calculation and, for the purpose of the...
Source-derived case information.
- Citation
- [2018] KEHC 2576 (KLR)
- Parties
- Applicant: APA Insurance Company Ltd; Respondent: Patrick Peter Kithiki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 392 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, Interest on Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
APA Insurance Company Ltd
Applicant
Patrick Peter Kithiki
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 What amount of security should be deposited for due performance of the decree.
- 3 Whether the interest calculation on the decretal sum is correct.
Ratio Decidendi
The court found that the applicant had demonstrated willingness to deposit the decretal sum as security for due performance of the decree, which is a key requirement for granting a stay of execution pending appeal. The court also considered the dispute over the interest calculation and, for the purpose of the security deposit, reduced the disputed interest by 50%. The total amount to be deposited as security was calculated by adding the principal sum, assessed costs, and the adjusted interest. The court allowed the application for stay of execution on the condition that the total sum of Ksh.563,297 be deposited in a joint interest earning account of the parties' counsels or in court...
Court Disposition
application allowed with conditions
Orders
- Stay of execution of the judgment and decree granted pending appeal.
- Applicant to deposit Ksh.563,297 in a joint interest earning bank account of the parties' counsels or in court within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 392 OF 2017
APA INSURANCE COMPANY LTD..................................APPLICANT
VERSUS
PATRICK PETER KITHIKI...........................................RESPONDENT
RULING
1. The application dated 19th July, 2018 seeks orders that pending hearing and determination of the Applicant’s Appeal, this honourable court be pleased to order stay of execution of the Judgment delivered by the Hon. Peter Muholi on 12th July, 2017 and any Decree arising therefrom, as against the Defendant/Applicant.
2. The application is based on the grounds stated therein and affidavit in support.
3. The application was opposed as per the replying affidavit.
4. During the hearing of the application, the counsels for the respective parties narrowed down the issues to only the question of the security to be deposited for the due performance of the decree.
5. I have considered the affidavit evidence. The Applicant’s are willing to deposit the decretal sum but dispute the interest payable which is calculated at 12% from the year 2014 and comes to Ksh.186,457/=. According to the Appellant, the interest awarded in the judgment of the lower court is from the date of judgment. For the purpose of the deposit payable, I will reduce the amount by 50% which comes to Ksh. 93,278/=. The principal sum is Ksh.371,424/= and the costs were assessed at Ksh.98,595. The total comes to Ksh.563,297/=.
6. Consequently, the application is allowed on condition that the sum of Ksh.563,297/= be deposited in a joint interest earning bank account of the counsels for the parties herein or in court within 30 days from date hereof.
Date, signed and delivered at Nairobi this 15th day of Oct., 2018
B. THURANIRA JADEN
JUDGE