[2014] KEHC 8327 (KLR)
The court found that since the appeal is against quantum only, the appellant concedes liability for damages but disputes the amount. The respondents' willingness to accept partial payment and secure the balance aligns with the appellant's own assessment of damages. To balance the interests of both parties and ensure...
Source-derived case information.
- Citation
- [2014] KEHC 8327 (KLR)
- Parties
- Appellant: Daniel Nderitu; Respondent: Rachel Njeri Kimani (Legal representative of Isaac Kimani Mwangi, Deceased); Respondent: John Mwangi Muthoni
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 184 of 2014
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Quantum of Damages
- 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
Daniel Nderitu
Appellant
Rachel Njeri Kimani (Legal representative of Isaac Kimani Mwangi, Deceased)
Respondent
John Mwangi Muthoni
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the money decree pending appeal.
- 2 What conditions, if any, should be imposed for the grant of stay of execution in a money decree appeal.
- 3 Whether the respondents' means are sufficient to secure repayment if the appeal succeeds.
Ratio Decidendi
The court found that since the appeal is against quantum only, the appellant concedes liability for damages but disputes the amount. The respondents' willingness to accept partial payment and secure the balance aligns with the appellant's own assessment of damages. To balance the interests of both parties and ensure the decretal sum is secured pending appeal, the court granted a conditional stay of execution: the appellant must pay KShs 600,000 to the respondents within 14 days and deposit the balance of KShs 1,200,000 in court within 21 days. Failure to comply with these conditions will result in the stay being vacated and the respondents being at liberty to execute the decree. Costs of...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- Stay of execution of decree pending disposal of the appeal upon the appellant paying KShs 600,000 to the respondents within 14 days.
- Appellant to deposit KShs 1,200,000 in court within 21 days, which may be released to a joint interest-earning account in the names of the advocates for the parties.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 184 OF 2014
DANIEL NDERITU ………………………….…………..….....APPEALLANT
VERSUS
RACHEL NJERI KIMANI
(Legal representative of
Isaac Kimani Mwangi, Deceased)
JOHN MWANGI MUTHONI......................................…..RESPONDENTS
R U L I N G
1. The appeal herein is against quantum only. It is a money decree. KShs 1. 6 million-odd was awarded by the lower court plus costs and interest.
2. The Appellant has now sought by notice of motion dated 29th May 2014stay of execution of the decree pending disposal of his appeal. That application is the subject of this ruling. It is brought under Order 42, rule 6 of the Civil Procedure Rules, 2010 (the Rules).
3. Grounds for the application appearing on the face thereof and also in the supporting affidavit include the averment that the Respondents have “no known stable means of income” and hence the likelihood that the Appellant will not recover the decretal sum in the event that he succeeds in his appeal; that there has not been any unreasonable delay in applying; and that the Appellant is ready to give security as the court might order.
4. The Respondents have opposed the application by replying affidavit filed on 11th June 2014. It is sworn by the 1st Respondent. Points taken include that the Respondents are of “stable means of income” as they run various businesses in Kiambu and Nairobi and will be able to pay back the decretal sum in the event that the appeal succeeds. In the alternative the Respondents are prepared to concede the application if KShs 600,000/00 is paid to them forthwith towards the decretal sum and the balance deposited in a joint interest-earning account pending disposal of the appeal. Apparently the Appellant had expressed this figure in a letter written by his advocates to be the proper damages due to the Respondents.
5. Learned counsels for the parties submitted along the lines set out above. I have considered those submissions together with the cases cited.
6. As already noted, the appeal is against quantum only. That is to say that the Appellant concedes that the Respondents are entitled to damages, the only issue being the quantum thereof. By his own assessment the Appellant says that those damages ought to be KShs 600,000/00 and not as assessed by the court. In their replying affidavit the Respondents have stated, in effect, that they will concede the application if KShs 600,000/00 is paid to them immediately and the balance of the decretal sum deposited in a joint interest-earning account.
7. In these circumstances I will order as follows in the interest of justice –
(a) There shall be stay of execution of decree pending disposal of the appeal upon the following conditions:
The Appellant shall pay to the Respondents within fourteen (14) days of delivery of this ruling the sum of KShs 600,000/00 towards the decretal sum.
The Appellant shall deposit in court within twenty-one (21) days of delivery of this ruling the balance of the decretal sum (for purposes of this order calculated at KShs 1,200,000/00). This sum may subsequently be released to a joint interest-earning account in the names of the advocates for the parties on record which they are at liberty to open.
In default of (i) or (ii) above the stay of execution of decree now granted shall forthwith stand vacated, and the Respondents shall be at liberty to execute.
(b) Costs of the application shall be in the appeal.
8. Those will be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF OCTOBER 2014
H P G WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 24TH DAY OF OCTOBER 2014