[2020] KEHC 9324 (KLR)
The court found that the application for stay of execution was made without unreasonable delay, as it was filed shortly after the ruling. However, the applicant did not assert that the respondent would be unable to refund the decretal sum if the appeal succeeded, thus failing to demonstrate substantial loss. The...
Source-derived case information.
- Citation
- [2020] KEHC 9324 (KLR)
- Parties
- Applicant: Buyimpex Agencies Limited; Respondent: Crown Health Care Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 473 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Buyimpex Agencies Limited
Applicant
Crown Health Care Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court's ruling pending appeal.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant has demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution was made without unreasonable delay, as it was filed shortly after the ruling. However, the applicant did not assert that the respondent would be unable to refund the decretal sum if the appeal succeeded, thus failing to demonstrate substantial loss. The respondent did not object to a stay provided the decretal sum was secured. To balance the interests of both parties, the court allowed the application for stay on condition that the decretal sum (Ksh.3,064,599/=) be deposited in a joint interest earning bank account of the parties' advocates or in court within 30 days. Costs were ordered to be in the cause.
Court Disposition
Application for stay of execution allowed on condition.
Orders
- The decretal sum of Ksh.3,064,599/= shall be deposited in a joint interest earning bank account of the advocates for the parties or in court within 30 days from the date of the ruling.
- Costs in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 473 OF 2019
BUYIMPEX AGENCIES LIMITED...............................................APPLICANT
VERSUS
CROWN HEALTH CARE LIMITED.......................................RESPONDENT
RULING
1. The application dated 14th August, 2019 seeks orders there be an order of temporary stay of execution of the Ruling of the Senior Principal Magistrate Hon. A. M. Obura (Mrs.) delivered on 26th July, 2019 in Nairobi (Milimani Commercial Court) CMCC No. 7456 of 2015 pending the hearing and determination of this Appeal.
2. It is stated in the grounds and the affidavit in support of the application that on 15th September, 2016 judgment on admission was entered by the lower court against the Applicant for the sum of Ksh.3,831,907. 67. That the issue of interest and the disputed sum of Ksh.123,400/= was to proceed to a full trial. The Applicant is aggrieved by a revisit of the matter by the trial court three years later wherein interest at court rates with effect from 8th August, 2013 till payment in full was awarded for the admitted sum of Ksh.3,831,907. 67. It is contended that the Appeal herein is arguable and that the same will be rendered nugatory if the application at hand is not allowed.
3. In the replying affidavit filed in opposition to the application, it is conceded that judgment on admission was entered for the sum of Ksh.3,831,907/= and the disputed sum of Ksh.123,400/= and the issue of interest was to proceed to a full trial. It is further stated that the Applicant herein filed HCCA No. 65/17 wherein by consent the parties agreed that the sum of Ksh. 3,831,167/= be liquidated by monthly installments and that the issue of interest payable be canvassed in the lower court. That the Respondent had waived the issue of the disputed Ksh.123,400/=. That the question of the interest payable was thereafter canvassed before the lower court and the Respondent herein awarded interest on the principal sum which came to Ksh.2,785,249/= and the costs of the suit which came to Ksh.279,352/=. The Respondent urged the court to have the said sums of money deposited in court or in an interest earning joint bank account of the advocates for the parties pending the hearing and determination of the Appeal.
4. I have considered the application, the response to the same and the submissions by counsel for the respective parties.
5. Under Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 the conditions for stay of execution are as follows:
“No order for stay of execution shall be made under sub-rule (1) unless –
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
6. The application at hand was filed on 15th August, 2019. The ruling the subject matter of the appeal herein was delivered on 26th July, 2019. There was no unreasonable delay.
7. On substantial loss, there are no assertions made in the affidavit in support that the Respondent is not capable of refunding the amount in question. The Respondent is however not objected to the deposit of the decretal sum if the court finds that the application is arguable.
8. To balance the competing interest of the parties, I allow the application on condition that the decretal sum, that is Ksh.3,064,599/= (Ksh.2,785,247/= plus Ksh.279,352/=) is deposited in a joint interest earning Bank account of the respective counsel for the parties herein or in court within 30 days from the date hereof. Costs in cause.
Dated, signed and delivered at Nairobi this 12th day of Feb., 2020
B.THURANIRA JADEN
JUDGE