[2008] KEHC 1022 (KLR)
The court found that while the applicant demonstrated sufficient cause and the application was not unduly delayed, it failed to establish that it would suffer substantial loss if stay was not granted. The sum involved (Kshs. 127,000) was not shown to be irrecoverable from the respondent or to cause financial...
Source-derived case information.
- Citation
- [2008] KEHC 1022 (KLR)
- Parties
- Appellant: Blueshield Insurance Co. Ltd; Respondent: Sheila William Mkasi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Default Judgment, Substantial Loss, Security for Stay, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Blueshield Insurance Co. Ltd
Appellant
Sheila William Mkasi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for grant of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that while the applicant demonstrated sufficient cause and the application was not unduly delayed, it failed to establish that it would suffer substantial loss if stay was not granted. The sum involved (Kshs. 127,000) was not shown to be irrecoverable from the respondent or to cause financial distress to the applicant, a major insurance underwriter. The applicant also failed to show that payment would render the appeal nugatory. As all prerequisites for stay must be satisfied, the failure to prove substantial loss was fatal to the application. Consequently, the application for stay of execution was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 36 of 2008
BLUESHIELD INSURANCE CO. LTD……………….APPELLANT
VERSUS
SHEILA WILLIAM MKASI…………………….………RESPONDENT
RULING
The appellant, Blueshield Insurance Company Limited, has lodged the Notice of Motion dated 3rd July 2008 seeking mainly a stay of execution of the order of the Lower Court dated 14th February 2008. By that order the Learned Magistrate dismissed the appellant’s application dated 16th November 2007 which application primarily sought to set aside a default judgment. The effect of the order was to pave way for execution of the decree which had issued pursuant to the default judgment.
The application is expressed to be brought under the provisions of Order XLI Rule 4 of the Civil Procedure Rules, Section 3A and 63 (e) of the Civil Procedure Act and all other enabling provisions of the Law. The application is based on three main grounds namely: that (i) the applicant is likely to suffer substantial loss unless the stay is ordered; (ii) that the applicant is willing to abide by the orders of the court regarding security and (iii) that the appeal shall be rendered nugatory if execution is not stayed.
The application is supported by an affidavit sworn by one Christopher Oisera, the applicant’s Claim’s Officer – Coast Region. The affidavit elaborates the above grounds of the application. The application is opposed and the respondent has filed a replying affidavit. The substance of the opposition is that the applicant does not have an appeal with any chances of success and that the respondent stands to suffer more than the applicant if stay is ordered.
The grounds upon which an order of stay of execution of decree can be sought are stated in Order XLI Rule 4 of the Civil Procedure Rules. They are as follows:
(i) Demonstration of sufficient cause.
(ii) Establishment that substantial loss may result unless stay is granted.
(iii) Evidence that the application has been lodged without unreasonable delay.
(iv) Furnishing of security.
The applicant asserts that its appeal is meritorious and is not frivolous. I note that it sought to set aside a default judgment without success. It also alleges repudiation of the policy. I do not have to consider each and every ground of the appeal. It is sufficient to say that having considered the Memorandum of Appeal and the supporting affidavit, I cannot say that the appeal is frivolous. I therefore find that the applicant has shown sufficient cause.
Regarding delay, it is noted that the ruling of the Lower Court was delivered on 14th February 2008. The applicant lodged an application in the Lower Court on 6th March 2008. Ruling thereon was delivered on 19th June 2008. This application was then lodged on 3rd July 2008. The delay involved is of 14 days. In my view that delay cannot be said to be inordinate.
The applicant had also to show that substantial loss may be occasioned to it if the order of stay is not granted. With regard to that aspect of the application, the applicant’s Coast Claims Officer swore that the applicant would suffer irreparable loss, damage and financial distress. The sum involved is about Kshs. 127,000. 00. I fail to see how payment of this sum can cause financial distress to the applicant which is “a major underwriter of insurance policies in the country.”
I also do not see how payment of the said sum will render the applicant’s appeal nugatory. The applicant has not demonstrated that the said sum cannot be recovered from the respondent if the appeal eventually succeeds. It is clear therefore that the applicant has not demonstrated that it stands to suffer substantial loss if the order of stay is not granted.
All the prerequisites for the grant of an order of stay of execution have to be satisfied by the applicant before the grant of stay can be ordered. The applicant has failed in one. Consequently, the application must fail. Accordingly, it is dismissed with costs.
DATED AND DELIVERED AT MOMBASA THIS 9TH DAY OCTOBER 2008.
F. AZANGALALA
JUDGE
Read in the presence of:
Mulongo for the Respondent and Hamza holding brief for Egunza for the Applicant.
F. AZANGALALA
JUDGE
9TH OCTOBER 2008