[2018] KEHC 8297 (KLR)
The court found that the defendants are entitled to pursue their right of appeal and that the application for stay of execution was made without unreasonable delay. However, the court balanced the interests of both parties, noting that the plaintiff continues to incur medical expenses and is entitled to the fruits...
Source-derived case information.
- Citation
- [2018] KEHC 8297 (KLR)
- Parties
- Plaintiff: Charlene Njeri Kuria; Defendant: Simon Gitu Mbirua; Defendant: Gitu Geoffrey
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 295 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- Conditional stay of execution granted; extension of time to appeal granted.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Extension of Time to Appeal, Road Traffic Accidents, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charlene Njeri Kuria
Plaintiff
Simon Gitu Mbirua
Defendant
Gitu Geoffrey
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the defendants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the defendants should be granted an extension of time to file an appeal.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the defendants are entitled to pursue their right of appeal and that the application for stay of execution was made without unreasonable delay. However, the court balanced the interests of both parties, noting that the plaintiff continues to incur medical expenses and is entitled to the fruits of her judgment. The court held that a stay of execution would only be granted on condition that the defendants pay the plaintiff Kshs. 6 million within 60 days and post a bank guarantee of Kshs. 20 million within the same period, failing which execution would proceed. The extension of time to file the appeal was also granted for 30 days from the date of the ruling.
Court Disposition
Conditional stay of execution granted; extension of time to appeal granted.
Orders
- Time for the defendants to lodge an appeal is extended by 30 days from the date of this ruling.
- Stay of execution is granted provided the defendants pay the plaintiff Kshs. 6 million within 60 days from the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 295 OF 2014
CHARLENE NJERI KURIA.............................PLAINTIFF
VERSUS
SIMON GITU MBIRUA..........................1ST DEFENDANT
GITU GEOFFREY...................................2ND DEFENDANT
RULING
On 30th November, 2016 the court delivered a judgment in favour of the plaintiff against the two defendants in the total sum of Kshs. 34,297,222/=. The plaintiff’s case against the defendants was as a result of a road traffic accident where she suffered serious injuries. The parties had entered a consent judgment on liability to the extent of 90% against the defendants and 10% on the part of the plaintiff.
There is evidence that the insurance company that covered the defendant’s motor vehicle had paid a sum of Kshs. 3 Million towards the settlement of the decree. There is now before me an application dated 29th September, 2017 by way of Notice of Motion for the order that there be a stay of execution pending the determination of an appeal which however is yet to be lodged. There is a prayer that leave be granted to extend the time within which to file the appeal.
The principles upon which the court may act in applications for stay of execution are well settled and are specifically set out under Order 42 Rule 6 (2) of the Civil Procedure Rules. The court has to be satisfied that there may be substantial loss on the part of the applicant if such an order is not granted, and that the application is made without unreasonable delay.
The court may also order the posting of security for the due performance of a decree or order that may ultimately be binding on the applicant.
The defendants have the right of appeal which they are entitled to pursue. In that regard, I grant the order that the time for them to lodge an appeal be extended by a period of 30 days from the date of this ruling. On the issue of stay of execution I have taken into consideration the submissions filed by both counsel and the authorities cited which I need not repeat in this ruling.
The plaintiff holds a judgment in her favour and part of that judgment relates to costs of medication which she still undergoes following the accident. She is not party to the policy between the defendants and the insurer and therefore cannot be drawn into the dispute between the defendants and the insurer.
Before the delivery of the Judgment in question, both parties made substantial submissions on quantum of damages. The defendants had submitted that an award of Kshs. 9. 6 Million was sufficient to compensate the plaintiff.
The insurance company having settled the claim to the extent of Kshs. 3 million there is a balance of about Kshs. 6. 6 Million to bridge the gap of the defendant’s submission. Even if the defendants were to submit that the sum due and payable to the plaintiff following the judgment is substantial, they have not given any explanation as to why they have not even offered to pay the sum of Kshs. 6. 6. Million to bridge the gap between what the insurer has paid and what they submitted.
I have already observed that the plaintiff is still undergoing treatment and it is only fair and just, going by the extent of liability, she receives the fruits of her judgment. Whether or not the plaintiff has an arguable appeal is not for me to decide at this stage.
Having weighed one thing against the other, I am persuaded the defendants should be granted a stay of execution provided they pay the plaintiff the sum of Kshs. 6 Million within the next 60 days from the date of this ruling. They shall further post a bank guarantee of Kshs. 20 Million within the next 60 days pending the determination of the appeal. In default of the above conditions execution shall proceed. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 22nd Day of February, 2018.
A. MBOGHOLI MSAGHA
JUDGE