[2018] KEHC 6193 (KLR)
The court found that the appellant had demonstrated arguable grounds of appeal and that substantial loss may result if the stay is not granted, particularly regarding the balance of the decretal sum above the insurance policy limit. The court exercised its discretion to grant a conditional stay of execution,...
Source-derived case information.
- Citation
- [2018] KEHC 6193 (KLR)
- Parties
- Appellant: Directline Assurance Company Ltd; Respondent: Simon Chege Ngugi; Interested Party: Lawrence Muriungi Gichunge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 18 of 2018
- Procedural Posture
- Civil Appeal / Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on condition of provision of bank guarantee.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals Process, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Directline Assurance Company Ltd
Appellant
Simon Chege Ngugi
Respondent
Lawrence Muriungi Gichunge
Interested Party
Procedural Posture
Civil Appeal / Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending the hearing and determination of the appeal.
- 2 Whether the appellant has demonstrated that substantial loss may result if the stay is not granted.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the appellant had demonstrated arguable grounds of appeal and that substantial loss may result if the stay is not granted, particularly regarding the balance of the decretal sum above the insurance policy limit. The court exercised its discretion to grant a conditional stay of execution, requiring the appellant to provide a bank guarantee for the balance of the decretal sum within 30 days. The court emphasized the need to balance the appellant's right of appeal with the respondent's right to the fruits of judgment, and that the provision of security would adequately protect both parties' interests.
Court Disposition
Stay of execution granted on condition of provision of bank guarantee.
Orders
- Stay of execution of the judgment is granted pending appeal, on condition that the appellant provides a bank guarantee for the balance of the decretal sum payable to the respondent within 30 days.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL OF 18 OF 2018
DIRECTLINE ASSURANCE COMPANY LTD............APPELLANT
VERSUS
SIMON CHEGE NGUGI............................................. RESPONDENT
LAWRENCE MURIUNGI GICHUNGE ......INTERESTED PARTY
RULING
This is an application by way of Notice of Motion dated 19th January, 2018 seeking an order that there be a stay of execution pending the hearing of the appeal filed herein. There is a judgment in favour of the respondent in the sum of Ksh. 7,462,000/= .
The respondent had sued the appellant and an interested party for orders that there be a declaration that the appellant had breached the contract with him and that his motor vehicle be returned. He also claimed loss of user.
The interested party in the lower court was a passenger in motor vehicle registration No. KBB 105 while the respondent was the owner of motor vehicle registration No. KBB 854 G. Incidentally, the appellant had covered both vehicles which were involved in the road traffic accident.
The appellant was aggrieved by the judgment of the lower court and filed the Memorandum of Appeal dated 16th January, 2018 raising several grounds to challenge the decision of the lower court. The provisions of law cited in the present application are Order 22 Rule 22 (1) of the Civil Procedure Rules, Sections 1A,1B,3A of the Civil Procedure Act, Articles 48 and 159, (2), (b), (d) of the Constitution.
The application is supported by an affidavit sworn by the Head of Claims in the appellant’s office alongside several grounds which appear on the face of the application. The advocate for the interested party has filed grounds of opposition. All parties have filed submissions herein and cited several authorities.
The appellant has the right of appeal which it has exercised by way of the Memorandum of Appeal already filed. Before then, several applications had been filed before the lower court relating to the same claim ending with the judgment now challenged on appeal.
I have considered the material placed before me. Some of the matters addressed by the parties touch on the grounds of appeal that appear in the Memorandum of Appeal on record. There are serious issues to be argued when the appeal comes up for hearing and therefore, I will restrict myself to the prayer of stay of execution so that the rest of the issues are handled by the court that shall be seized of the appeal when it comes up for hearing.
The argument that the appellant should pay the balance of the decretal sum over and above Kshs. 3,000,000/= reserved in the insurance policy is crucial and in the event stay of execution is not allowed, then substantial loss may result if the appeal succeeds.
On the question of prejudice, it is possible to ensure that the appeal is expedited so that if the appeal is not allowed the respondent enjoys the fruits of his judgment. The appellant has offered to post security which has not been seriously challenged.
Considering the totality of the material placed before me, I am inclined to exercise the court’s discretion and order a stay of execution on condition that the appellant provides a bank guarantee for the balance of the decretal sum payable to the respondent within 30 days from the date of this ruling.
The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 31st day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE