[2017] KEHC 1033 (KLR)
The court found that the applicants had sufficiently explained the delay in filing the application and that they had an arguable appeal. Although the respondent had not provided evidence of her financial standing, this was not held against her as she had a valid judgment. The court balanced the applicants' right to...
Source-derived case information.
- Citation
- [2017] KEHC 1033 (KLR)
- Parties
- Applicant: Beth Kanini Mbithi; Applicant: George Kahura; Respondent: Ann Wanjiku Waithaka and Phasyphicks Akinyi Ogutu (as legal administrators of the estate of the late Hillary Waithaka Njoroge)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 239 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beth Kanini Mbithi
Applicant
George Kahura
Applicant
Ann Wanjiku Waithaka and Phasyphicks Akinyi Ogutu (as legal administrators of the estate of the late Hillary Waithaka Njoroge)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the lower court judgment pending appeal.
- 2 Whether leave to appeal out of time should be granted to the applicants.
- 3 Whether the conditions for stay of execution have been satisfied.
Ratio Decidendi
The court found that the applicants had sufficiently explained the delay in filing the application and that they had an arguable appeal. Although the respondent had not provided evidence of her financial standing, this was not held against her as she had a valid judgment. The court balanced the applicants' right to appeal with the respondent's right to enjoy the fruits of judgment and granted a conditional stay of execution. The stay was made subject to the applicants paying Kshs. 500,000 to the respondent within 30 days and depositing the balance of the decretal sum in a joint interest earning account within the same period. Leave to appeal out of time was also granted, with the appeal...
Court Disposition
Application allowed with conditions.
Orders
- Leave to appeal out of time is granted; applicants to file appeal within 60 days.
- Stay of execution granted on condition that applicants pay respondent Kshs. 500,000 within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION NO. 239 OF 2017
BETH KANINI MBITHI................................................1ST APPLICANT
GEORGE KAHURA.....................................................2ND APPLICANT
VERSUS
ANN WANJIKU WAITHAKA AND PHASYPHICKS AKINYI OGUTU
Suing as the legal administrators of the estate of the late
HILLARY WAITHAKA NJOROGE.................................RESPONDENT
RULING
This is an application by way of Notice of Motion dated 15th June, 2017 seeking an order of Stay of Execution of the Judgment of the lower court delivered on 3rd March, 2017. There is also a prayer for leave to appeal out of time. The grounds relied upon appear on the face of the application and there is also a supporting affidavit sworn by Pauline Waruhiu the claims director of Direct Line Assurance Company Limited who was the insurer of motor vehicle registration No.KBD 692N. The application is opposed and there is a replying affidavit sworn by the advocate for the respondent. Both parties have filed written submissions.
I have taken into consideration the material placed before me, and note that the applicants’ main ground in seeking stay of execution is that the lower court awarded excessive damages to the respondent. The delay in filing the application has been sufficiently explained by the applicants and I need not address the issue.
It is true that the respondent has not provided any evidence of her financial standing but that should not be held against her. I say so because she has a valid judgment only that the applicants also have a right of appeal. I have also looked at the proposed memorandum of appeal filed alongside the application. The only observation I can make is that the applicant has an arguable appeal.
In earlier submissions the applicants had proposed to pay the sum of Kshs. 500,000/= in settlement of the claim. It is the respondent’s submission that the applicants have withheld that commitment in this application.
The suit arose from a fatal accident but I do not have the benefit of reading the lower court judgment which has not been annexed. Doing the best with the material placed before me, I allow the application and grant leave to the applicants to file the appeal within 60 days from today.
There shall be a stay of execution on condition that the applicants pay the respondent a sum of Kshs. 500,000/= within 30 days from today and deposit the balance of the decretal sum in a joint interest earning account in the names of the advocates for the parties on record within the same period of 30 days. In default of the above conditions execution shall proceed. The costs of this application shall be on appeal.
Dated, signed and delivered at Nairobi this 21st Day of November, 2017
A. MBOGHOLI MSAGHA
JUDGE