[2018] KEHC 6191 (KLR)
The court found that the application for stay of execution was made timeously and that the appellant was willing to provide security. The respondent's proposal to accept half of the decretal sum and have the balance deposited in a joint interest earning account was deemed reasonable given the nature of the claim. To...
Source-derived case information.
- Citation
- [2018] KEHC 6191 (KLR)
- Parties
- Appellant: Carman Electrics Limited; Respondent: Samuel Kaigu Njau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 661 of 2017
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Process, Statute Barred Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Carman Electrics Limited
Appellant
Samuel Kaigu Njau
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether security for the decretal sum should be ordered and in what form.
- 3 Whether the respondent's proposal regarding partial payment and deposit of balance is reasonable.
Ratio Decidendi
The court found that the application for stay of execution was made timeously and that the appellant was willing to provide security. The respondent's proposal to accept half of the decretal sum and have the balance deposited in a joint interest earning account was deemed reasonable given the nature of the claim. To balance the interests of both parties and meet the ends of justice, the court allowed the application for stay of execution on condition that the appellant pays the respondent Kshs. 300,000 and deposits the balance of the decretal sum in an interest earning account in the names of both advocates within 30 days. Costs were reserved for the appeal.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- Appellant to pay respondent Kshs. 300,000.
- Balance of decretal sum to be deposited in an interest earning account in the names of both advocates within 30 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 661 OF 2017
CARMAN ELECTRICS LIMITED.......................APPELLANT
VERSUS
SAMUEL KAIGU NJAU.....................................RESPONDENT
RULING
The lower court delivered Judgment in favour of the respondent on 14th November, 2017 holding that the appellant was 100% liable to the respondent and awarded Kshs. 600,000/= general damages, Kshs. 100,000/= future medical expenses, Kshs. 5,000/= doctor’s attendance fee and Kshs. 1,500/= special damages.
The appellant was aggrieved by that decision and filed a Memorandum of Appeal on 30th November, 2017 disputing the finding on liability, future medical expenses and general damages. It is also the appellant’s position that the respondent’s suit was statute barred.
There is now before me an application by way of Notice of Motion dated 7th December,2017 seeking an order of stay of execution pending the hearing of the appeal. It is brought under Section 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, based on the grounds set out on the face of the application and a supporting affidavit sworn by the Managing Director of the appellant.
The application is opposed and there is a replying affidavit sworn by the advocate for the respondent. Both parties have filed submissions and cited some authorities which I have considered. The application was filed timeously. The applicant is also ready to abide by any terms or conditions in terms of security that may be ordered by the court.
I have considered also that the respondent has a judgment in his favour which he desires to benefit from. I refer in particular to paragraph 15 of the replying affidavit where the respondent is ready to accept half of the decretal sum, and the balance be deposited in a joint interest earning account in the names of the advocates.
Considering the nature of the claim, that proposal is not unreasonable.
To meet the ends of justice, I allow the application for stay of execution on condition that the appellant pays the respondent a sum of Kshs. 300,000/=, and cause the balance of the decretal sum to be deposited in an interest earning account, in the names of both advocates within 30 days from the date of this ruling. The costs shall be in the appeal.
Dated, signed and delivered at Nairobi this 29th day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE