[2019] KEHC 1397 (KLR)
The court found that the appellant had demonstrated a real risk of substantial loss if stay was not granted, given the respondent's unemployment and lack of evidence of ability to refund the decretal sum should the appeal succeed. The court held that the interests of both parties must be balanced, and that the...
Source-derived case information.
- Citation
- [2019] KEHC 1397 (KLR)
- Parties
- Appellant: Equity Bank Limited; Respondent: Samuel Stanley Kiarie Mungai; Respondent: Hon. Attorney General; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 170 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Malicious Prosecution, Substantial Loss, Security for 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
Equity Bank Limited
Appellant
Samuel Stanley Kiarie Mungai
Respondent
Hon. Attorney General
Respondent
Director of Public Prosecutions
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the respondent's ability to refund the decretal sum if the appeal succeeds is in doubt.
- 3 Whether the appellant should provide security for the due performance of the decree.
Ratio Decidendi
The court found that the appellant had demonstrated a real risk of substantial loss if stay was not granted, given the respondent's unemployment and lack of evidence of ability to refund the decretal sum should the appeal succeed. The court held that the interests of both parties must be balanced, and that the appellant's right of appeal should not be rendered nugatory. Accordingly, the court allowed the application for stay of execution on condition that the appellant deposits the decretal sum in an interest-earning joint account in the names of both advocates within 30 days.
Court Disposition
Application for stay of execution allowed with conditions.
Orders
- Stay of execution of the lower court judgment granted pending appeal, on condition that the appellant deposits the decretal sum in an interest-earning account in the names of both advocates within 30 days.
- Costs of the application to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 170 OF 2019
EQUITY BANK LIMITED......................................................................APPELLANT
VERSUS
SAMUEL STANLEY KIARIE MUNGAI...................................1ST RESPONDENT
HON. ATTORNEY GENERAL...................................................2ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS................................3RD RESPODENT
RULING
The 1st respondent in this application sued the appellant and two others in the lower court claiming damages for malicious prosecution, and special damages incurred in the process of defending himself in a criminal case lodged against him. The appellant denied the claim but after a full trial judgment was entered in favour of the 1st respondent against the appellant and the 2nd and 3rd respondents.
Aggrieved by the said judgment the appellant lodged an appeal by way of Memorandum of Appeal filed on 27th March, 2019.
There is now before me an application by way of Notice of motion dated 28th March, and filed on1st April, 2019 for the substantive order that there be a stay of execution of the lower court judgment delivered on 1st March, 2018 pending the hearing and determination of the appeal.
The application is supported by grounds set out therein, in addition to the supporting affidavit sworn by Kariuki Kingori the Legal Services Manager of the appellant. The application is opposed and there is a replying affidavit sworn by the 1st respondent. Both parties have also filed submissions and cited several authorities which I have considered.
The judgment of the lower court having been delivered on 1st March, 2019, the Memorandum of Appeal and Notice of Motion were filed timeously. The appellant has to demonstrate that substantial loss may be incurred if the order sought is not granted. It is feared that if the decree is satisfied then the 1st respondent may not be in a position to refund the said sum hence substantial loss may result.
The appellant is ready to abide by any terms given by the court including the deposit of such sums as may be ordered by the court. Above all, the appellant believes it has an arguable appeal that may be rendered nugatory.
The 1st respondent has a judgment in his favour which he desires to execute. His interest however has to be balanced with that of the appellant who also has the right of appeal. The 1st respondent has stated that he has been unemployed, and failed to find employment in the banking sector as at the date of swearing his affidavit in May, 2019.
Where there is apprehension on the part of the applicant that if the decree is satisfied, the respondent may not be in a position to repay the same in the event the appeal succeeds, it behoves the respondent to satisfy the court, that is not the position.
The respondent is unemployed and has not been able to find a job, at least as at the time he swore his affidavit. The fear on the part of the applicant is therefore well founded. The appeal is against both liability and quantum going by the memorandum of appeal.
I have considered the material presented before me in line with the cited authorities. I am inclined to allow the application on condition that, the appellant shall deposit the decretal sum in an interest earning account in the names of both advocates on record within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this7th Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE