[2015] KEHC 976 (KLR)
The court found that the defendant had sufficiently demonstrated the risk of substantial loss, as the plaintiff did not controvert the assertion that he would be unable to refund the decretal sum if paid. The court further held that the defendant's proposal to use the truck registration no. KBF 011F as security for...
Source-derived case information.
- Citation
- [2015] KEHC 976 (KLR)
- Parties
- Plaintiff: Dominic B. Onyango Konditi; Defendant: Abson Motors Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 164 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution pending appeal allowed with conditions
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeals, Decretal Sum
- 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
Dominic B. Onyango Konditi
Plaintiff
Abson Motors Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendant has demonstrated substantial loss if stay of execution is not granted.
- 2 Whether adequate security for the due performance of the decree has been provided.
Ratio Decidendi
The court found that the defendant had sufficiently demonstrated the risk of substantial loss, as the plaintiff did not controvert the assertion that he would be unable to refund the decretal sum if paid. The court further held that the defendant's proposal to use the truck registration no. KBF 011F as security for the due performance of the decree was reasonable, especially since the plaintiff did not file an affidavit to challenge this proposal. Accordingly, the court granted a conditional stay of execution pending appeal, with the truck serving as security.
Court Disposition
application for stay of execution pending appeal allowed with conditions
Orders
- Stay of execution pending appeal is granted on condition that truck registration no. KBF 011F shall act as security for the due performance of the decree.
- Costs of the motion to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 164 OF 2012
DOMINIC B. ONYANGO KONDITI............ PLAINTIFF
VERSUS
ABSON MOTORS LIMITED.................. DEFENDANT
RULING
The Defendant/Applicant herein, took out the motion dated 22nd October 2015 in which it sought for an order for stay of execution of this court’s decree pending appeal. The motion is supported by the affidavit of Abdul Hakim. When served the Plaintiff/Respondent filed grounds of opposition to oppose the motion.
I have considered the oral submissions made by learned counsels. I have also considered the grounds set out on the face of the motion plus the facts deponed in the supporting affidavit and the grounds of opposition. It is not in dispute that on 25th September 2015, this court entered judgement in the sum of kshs. 14 million plus in favour of the Plaintiff and against the Defendant. Being dissatisfied, the Defendant filed a notice of appeal to intimate his intention to challenge the decision in the Court of Appeal. The Defendant has now beseeched this court to grant the order for stay pending appeal.
The Defendant pointed out that if the decretal sum is paid to the Plaintiff, the possibility of recovering the same is nil. The Plaintiff argued that the Defendant has not shown the substantial loss he would suffer if the order for stay is denied. An application for stay pending is determined by considering two main principles. First, an Applicant must show the substantial loss it would suffer if the order is denied. In this case, the Defendant has averred that the Plaintiff will not be in a position to refund the money if the decretal sum is paid. The Plaintiff did not deem fit to answer this very important ground. Since the Defendant/ Applicant has not controverted the Defendant’s averment, I am satisfied that the Defendant has shown the substantial loss it would suffer.
The second ground is in respect of the question of security. The Defendant has proposed that since motor vehicle registration no. KBF 011 plus the log book, are in possession of the Plaintiff, the same should act as security for the due performance of the decree. Again, the Plaintiff/Defendant did not file an affidavit to controvert the Plaintiff’s assertion. The Plaintiff proposed to this court to grant the order for stay on condition that the decretal sum of kshs.16,000,000/= be deposited as security for the due performance of the decree.
After carefully weighing the divergent arguments, I am satisfied that the proposal by the Defendant on the security for the due performance is reasonable.
In the end, I grant the Defendant an order for stay pending appeal on condition that truck registration no. KBF 011F shall act as security for the due performance of the decree.
Costs of the motion to abide the outcome of the appeal.
Dated, Signed and Delivered in open court this 20th day of November, 2015.
J. K. SERGON
JUDGE
In the presence of:
………………………………………. for the Plaintiff
……………………………………….for the Defendant