[2018] KEHC 9930 (KLR)
The court found that the application for stay was filed without delay, as it was made the day after the lower court's dismissal. The applicants' assertion that they would suffer substantial loss if the decretal sum was paid out, due to the respondent's unknown means, was not rebutted by the respondent. Applying the...
Source-derived case information.
- Citation
- [2018] KEHC 9930 (KLR)
- Parties
- Applicant: Commercial Transporters Limited; Applicant: John Mburu Kige; Respondent: Elijah Ngige Kuria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 73 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Decree, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commercial Transporters Limited
Applicant
John Mburu Kige
Applicant
Elijah Ngige Kuria
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules.
- 2 Whether the deposited decretal sum should be preserved pending the determination of the appeal.
Ratio Decidendi
The court found that the application for stay was filed without delay, as it was made the day after the lower court's dismissal. The applicants' assertion that they would suffer substantial loss if the decretal sum was paid out, due to the respondent's unknown means, was not rebutted by the respondent. Applying the principle that the evidential burden shifts to the respondent to demonstrate ability to refund the decretal sum, and noting that the decretal sum was already deposited in court, the court concluded that the applicants had satisfied the requirements for stay of execution pending appeal. Accordingly, the court allowed the application and ordered that the decretal sum remain...
Court Disposition
application allowed
Orders
- The decretal sum to remain deposited in court until the appeal is disposed of.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 73 OF 2018
COMMERCIAL TRANSPORTERS LIMITED................1ST APPLICANT
JOHN MBURU KIGE .........................................................2ND APPLICANT
VERSUS
ELIJAH NGIGE KURIA........................................................RESPONDENT
RULING
1. The application dated 13th June, 2018 seeks orders that this Honourable Court be pleased to stay execution of the orders given on 12th of June 2018 and the judgment and decree given on 12th February, 2018 in Milimani Chief Magistrates Court (Milimani) Civil Case Number 10524 of 2007 Elijah Ngige Kuria v commercial Transporters Limited and John Mburu Kige, against the Applicants herein pending the hearing and determination of the Applicants’ appeal against the trial court’s Judgment and decree of the 12th of February 2018.
2. Secondly, that the decretal sum Ksh.3,376,606. 02 deposited in court by the Applicants herein be preserved pending the hearing and determination of the Applicants’ appeal against the trial court’s judgment and decree of the 12th of February, 2018.
3. It is stated in the grounds and the affidavit in support of the application that the Applicants are desirous of filing an appeal but their application for stay pending appeal was dismissed by the trial court on 12th June, 2018. That the Applicants deposited the decretal sum of Ksh.3,376,606. 02 pending the hearing of their application before the lower court. That the Respondents suit was filed out of time and the appeal has high chances of success and will be rendered nugatory if the instant application is not allowed. The Applicants are apprehensive that the Respondent whose means are unknown is not in a position to reimburse the decretal sum in the event that the appeal is successful.
4. The application is opposed. It is stated in the replying affidavit that the suit was filed after the Respondent had obtained leave to file suit out of time. That the appeal has no chances of success and will prejudice the Respondent who will not be able to enjoy the fruits of his judgment.
5. The application was argued by way of written submissions which I have considered.
6. Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides 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.”
7. It is not in dispute that the application for stay was dismissed by the lower court on 12th June 2018. The instance application was filed the following day on 13th June, 2016. There was no delay.
8. The Applicants’ contention that they stand to suffer substantial loss as the Respondent is not in a position to refund the decretal sum has not been rebutted. As stated by the Court of Appeal in the case of Nrb Civil Application 238 of 2005 (UR 144/2005) National Industrial Credit Bank Ltd -Vs- Aquinas Francis Wasike & Another:
“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge – see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.”
9. The Respondent has already deposited the decretal sum in court.
10. With the foregoing, I allow the application. The decretal sum to remain deposited in court until the appeal is disposed of.
Dated, signed and delivered in Nairobi this 19th day of Nov., 2018
B. THURANIRA JADEN
JUDGE