[2012] KEHC 4661 (KLR)
The court found that the application for stay of execution was brought without delay and that the appeal raised arguable points on liability, quantum, and ownership of the vehicle. The court exercised its discretion to grant a stay of execution, considering that the appellants had offered to deposit half of the...
Source-derived case information.
- Citation
- [2012] KEHC 4661 (KLR)
- Parties
- Appellant: Baloch Faisal & Another; Respondent: Elloy Kawira Nthiiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 21 of 2012
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition that half the decretal sum is deposited as security.
- Legal Topics
- Running Down Actions, Apportionment of Liability, Quantum of Damages, Stay of Execution, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Baloch Faisal & Another
Appellant
Elloy Kawira Nthiiri
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have demonstrated sufficient grounds for stay of execution pending appeal.
- 2 Whether the quantum of damages awarded by the trial court was inordinately high.
- 3 Whether the issue of ownership of the vehicle is a triable issue on appeal.
Ratio Decidendi
The court found that the application for stay of execution was brought without delay and that the appeal raised arguable points on liability, quantum, and ownership of the vehicle. The court exercised its discretion to grant a stay of execution, considering that the appellants had offered to deposit half of the decretal sum as security. The court held that this was a reasonable condition to balance the interests of both parties, ensuring that the respondent's judgment is secured while not imposing an undue burden on the appellants. The stay was therefore granted on condition that Ksh. 180,000, being half the decretal sum, be deposited in an interest-earning account in the joint names of...
Court Disposition
Stay of execution granted on condition that half the decretal sum is deposited as security.
Orders
- Stay of execution of the judgment and decree in CMCC 525 of 2009 is granted.
- The appellants shall deposit Ksh. 180,000 in an interest-earning account in the joint names of both advocates within 14 days.
Full Case Text
Judgment text and source record
63 paragraphs
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
a) Application for Stay of Execution pending appeal
3. Subject of Subordinate Court Case:-
TORT
3. 1 Running down cause
3. 2 Pedestrian run down
3. 3 Judgement of trial court
Liability 90%: 10%Quantum
General damages
Pain and suffering
Ksh. 400,000/-
Less 10% 40,000/-
ContributionKsh. 360,000/-
4. Application 10TH February 2012
i) Stay of execution
ii) Issue to be raised in appeal would be on
a) Liability
b) Quantum – inordinately high
c) Issue of ownership of vehicle
iii) Chances of success.
5. In reply:
No objection to stay on condition
Full decretal sum is deposited
6. Held:
i) Stay of execution.
ii) Condition half decretal sumbe deposited.
7. Case Law:
8. Advocates:
i)A.N. Munga instructed by M/s Mbigi Njuguna & Co Advocates for appellant/original defendant
ii)P.K. Njiiri instructed by M/s P.K. Njiiri & Co Advocates for respondent/original plaintiff
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 21 OF 2012
BALOCH FAISAL &ANOTHER ….................………….…APPELLANTS/ORIGINAL
RESPONDENT
VERSUS
ELLOY KAWIRA NTHIIRI ………...……….RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal from the Judgment of Hon. Ndeda Esq, Senior Principal Magistrate delivered on 7th December 2011 in CMCC 525 of 2009 at Thika Law Courts)
R U L I N G
Application for stay of execution
Dated 10th February 2012
I.BACKGROUND
1. The respondent, original plaintiff was, on the 30th January 2007 as a pedestrian, run down by a motor vehicle and sustained soft tissue injuries.
2. A case in the subordinate court was filed by the respondent in which the trial court held in its judgment that the appellant original defendant were liable for the said accident at 90% whilst the respondent at 10%.
3. An award for the soft tissue injuries was made for pain and suffering sustained at Ksh. 40,000/- less 10% contribution Ksh. 40,000/- Total Ksh. 360,000/=
4. Being dissatisfied, the two appellants filed appeal, by an application of 10th February 2012, they prayed for an application of stay of execution.
IIAPPLICATION 10TH FEBRUARY 2012
5. The arguments put forward that they will be raising the issue of liability and quantum on appeal, the quantum was inordinately high. The issue of ownership of the vehicle would also be raised.
6. The chances of success of the appeal was high.
7. In reply, the respondent stated that there was no objection to there being a stay of execution but that the whole sum of Ksh. 360,000/- be deposited to court. The appellant prays for half of the sum be deposited.
IIIFINDINGS
8. The application before me was bought without delay.
9. The probability of success of the appeal is arguable.
10. The security offered by the appellant was a deposit of half of the decretal sum.
11. I would find that this is a correct case to issue orders of stay of execution. The condition being that half the decretal sum be deposited as security namely Ksh. 180,000/- in an interest earning account signed by both advocates within 14 days, failure to, the said sum be deposited to court.
DATED THIS 22ND DAY OF FEBRUARY 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)A.N. Munga instructed by M/s Mbigi Njuguna & Co Advocates for appellant/original defendant
ii)P.K. Njiiri instructed by M/s P.K. Njiiri & Co Advocates for respondent/original plaintiff