[2018] KEHC 6342 (KLR)
The court found that the only substantive issue in the intended appeal was the quantum of damages awarded, and both parties had made concessions regarding the security for the decretal sum. Given these circumstances, the court considered it unnecessary to discuss the issues of delay and substantial loss in detail....
Source-derived case information.
- Citation
- [2018] KEHC 6342 (KLR)
- Parties
- Appellant: Daniel Kyalo Masuu; Respondent: Geofrey Muindi Masuu
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 62 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay Pending Appeal
- Outcome
- Application allowed in part with conditions.
- Judges
- CM Kariuki
- Legal Topics
- Extension of Time, Stay of Execution, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kyalo Masuu
Appellant
Geofrey Muindi Masuu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether a stay of execution of the decree should be granted pending the intended appeal.
- 3 What security, if any, should be ordered for the decretal sum.
Ratio Decidendi
The court found that the only substantive issue in the intended appeal was the quantum of damages awarded, and both parties had made concessions regarding the security for the decretal sum. Given these circumstances, the court considered it unnecessary to discuss the issues of delay and substantial loss in detail. Instead, the court focused on balancing the interests of both parties by ordering that part of the decretal sum be paid to the respondent and the remainder be deposited in a joint interest-earning account. The court exercised its discretion to grant leave to appeal out of time and to stay execution on terms that provided adequate security for the respondent while preserving the...
Court Disposition
Application allowed in part with conditions.
Orders
- Kshs. 300,000 to be paid to the respondent within 30 days and Kshs. 200,000 to be put in an interest earning account in the joint names of the parties' advocates within 30 days.
- The appeal shall be filed and served within 14 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HC MISC APPL. CC. NO. 62 OF 2018
DANIEL KYALO MASUU..........................APPELLANT
VERSUS
GEOFREY MUINDI MASUU.................RESPONDENT
RULING
1. By Notice of Motion dated 10/04/2018, the Applicant seeks orders for:-
Extension and leave to file appeal out of time.
Stay of extension of decree in Tawa SRM CC 127 OF 2017 pending hearing and determination for the intended appeal.
2. The Application is anchored on Section 3A, 79G, 95 CPR Order 22 Rule 23, 42 Rule 6, Order 5C Rule 6, Order 51 Rule 1&3 CPR 2010.
3. The Notice of Motion is based on grounds that; the Judgment was delivered on 20/02/2018 and days of filing Appeal lapsed by time Application herein was filed thus need to seek leave to appeal out of time.
4. The Applicant says he will suffer substantial loss and damage if orders sought are denied as the decretal amount if paid may never be recovered thus appeal be rendered nugatory.
5. The appeal is arguable and thus with high chances of success.
6. The Application is supported by Affidavit of Pauline Waruhiu sworn on 09/04/2018.
7. The deponent states that the judgment was delivered on 20/02/2018 in absence of their advocate and by the time the insurance got the decree time of filing appeal had lapsed.
8. He depones that if the awarded amount is paid there is no guarantee same would be recovered as Respondent does show means of refund in event appeal succeeds.
9. The draft memo of appeal impugns the award of Kshs. 500,000/= as been inordinately high.
10. The Respondent opposes application and has filed a Replying Affidavit which he swore on 17/04/2018. He submits that the conditions for stay under Order 42 Rule 6 have not been satisfied.
11. The judgment on liability was agreed at 90%:10% in favour of the Respondent thus leaving the task of Quantum to be determined by the court.
12. The total award with costs is Kshs. 733,493/=.
13. The Respondent urges court to order half amount to be paid to the Respondent and the balance be deposited in interest earning account.
14. I have noted on paragraph 8 of the Supporting Affidavit of Pauline Waruhia, there is offer to deposit money in court or in a joint interest earning account in parties advocate names.
15. The Respondent has countered the same by proposing the deposit of ½ of decretal amount in a joint account of both parties advocate and the other half to be paid to the Respondent.
16. Having the above concession and taking to account that the only issue the appeal is the Quantum, I find it academic to discuss the issues of delay, substantial loss but opt to deal with the security.
17. The court has not seen the Judgment to understand the nature of the injuries vis a vis the award of Kshs. 500,000/= impugned. The same figure will either remain same, increase or decrease after the appeal is disposed.
18. I find it fair to strike balance and order thus;
i. Kshs. 300,000/= be paid to the Respondent within 30 days and Kshs. 200,000/= be put in interest earning account in the joint names of the parties Advocate within 30 days.
ii. The appeal shall be filed and served within 14 days.
iii. In default of (i) above execution to issue.
SIGNED DATED AND DELIVERED THIS 16TH DAY OF MAY, 2018 IN OPEN COURT.
C. KARIUKI
JUDGE
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