[2001] KECA 263 (KLR)
The Court of Appeal found that the applicant had raised at least one arguable point on appeal regarding the propriety of granting summary money judgment against the insurance company. The court further held that the respondent had not satisfactorily demonstrated his ability to refund the decretal sum if the appeal...
Source-derived case information.
- Citation
- [2001] KECA 263 (KLR)
- Parties
- Applicant: Blue Shield Insurance Co Ltd; Respondent: Ignatius Ntundu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 322 of 2001
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Legal Topics
- Stay of Execution, Declaratory Judgment, Insurance Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Blue Shield Insurance Co Ltd
Applicant
Ignatius Ntundu
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has an arguable appeal warranting a stay of execution.
- 2 Whether the respondent's ability to refund the decretal sum if the appeal succeeds is sufficient to deny stay of execution.
Ratio Decidendi
The Court of Appeal found that the applicant had raised at least one arguable point on appeal regarding the propriety of granting summary money judgment against the insurance company. The court further held that the respondent had not satisfactorily demonstrated his ability to refund the decretal sum if the appeal were successful. Relying on established precedent, the court determined that these factors justified the grant of a stay of execution pending the hearing and determination of the appeal. The court also made ancillary orders regarding the release of attached goods, deposit of the decretal sum in a joint account, and allocation of costs.
Court Disposition
Stay of execution granted pending appeal.
Orders
- Stay of execution granted as prayed in the notice of motion until the hearing and determination of the appeal.
- Attached goods of the applicant to be released forthwith; court broker's charges to await outcome of the appeal unless otherwise agreed and paid.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, SHAH & O'KUBASU, JJ.A. CIVIL APPLICATION NO. NAI 322 OF 2001 (173/01 UR)
BETWEEN
BLUE SHIELD INSURANCE CO LTD .......................... APPLICANT
AND
IGNATIUS NTUNDU ................................................. RESPONDENT
(Application for stay of execution from the judgment of the High Court of Kenya at Meru (Tuiyot J) dated 22nd May, 2001
in
MERU H.C.C.C. NO. 79 OF 2001 ******************************
RULING OF THE COURT
We think the applicant has an arguable appeal and Mr Kurauka for the respondent is obviously right to concede this. The claim was for a declaratory judgment against the insurance company and it is arguable that even if the company was properly served with summons, the respondent was not entitled to obtain summary money judgment against it. That is one arguable point and that one point is sufficient.
We also think that the respondent is not very forthcoming in stating his ability to refund the decretal sum if the appeal against him was to succeed. It is clear that since the decision of this Court in KENINDIA ASSURANCE COMPANY LIMITEDV PATRICK MUTURI , Civil Application NO NAI 107 of 1993(unreported) the Court is perfectly entitled to take into account the ability of a respondent to refund the decretal sum if he were to be ordered to do so. We are, accordingly satisfied that the applicant is entitled to a stay of execution. We accordingly order as follows:
1. We grant to the applicant a stay as prayed in its notice of motion until the hearing and determination of the appeal.
2. The attached goods of the applicant are to be released to it forthwith and the court broker's charges are to await the outcome of the appeal unless the court broker and the applicant are agreed on costs and the applicant pays them pending the determination of the appeal.
3. The applicant is to deposit the decretal sum in Barclays Bank Ltd, Meru Branch within 30 days of the date of this order. The account is to be opened in the joint names of the advocates for the parties and the money so deposited can only be released on the signed authority of the two counsel.
4. The costs of this motion shall be in the appeal. These shall be our orders in the motion.
Dated and delivered at Nairobi this 26th day of September, 2001.
R. S. C. OMOLO
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JUDGE OF APPEAL
A. B. SHAH
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JUDGE OF APPEAL
E. O. O'KUBASU
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR