[2000] KECA 236 (KLR)
The Court found that the respondent was not shown to be a man of straw and did not object to the decretal sum being deposited in a joint account. However, since some special damages (specifically the cost of a replacement vehicle) were not specifically pleaded, the Court ordered that the decretal amount, less the...
Source-derived case information.
- Citation
- [2000] KECA 236 (KLR)
- Parties
- Applicant: Express Kenya Limited; Applicant: Ali Bakari Ali; Respondent: M. M. J. Kisoso
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 53 of ??
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Legal Topics
- Stay of Execution, Decretal Sum, Special Damages, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Express Kenya Limited
Applicant
Ali Bakari Ali
Applicant
M. M. J. Kisoso
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the determination of the intended appeal.
- 2 Whether the respondent's ability to refund the decretal sum if the appeal succeeds is in question.
- 3 Whether special damages not specifically pleaded should be excluded from the security deposit.
Ratio Decidendi
The Court found that the respondent was not shown to be a man of straw and did not object to the decretal sum being deposited in a joint account. However, since some special damages (specifically the cost of a replacement vehicle) were not specifically pleaded, the Court ordered that the decretal amount, less the Kshs.6,000,000 awarded as special damages for the replacement car, be deposited in an interest-bearing account in the joint names of the parties' advocates within 14 days. Failure to comply would void the stay. The stay was thus conditional on this deposit, balancing the interests of both parties and ensuring security for the due performance of the decree.
Court Disposition
Conditional stay of execution granted.
Orders
- The decretal amount minus Kshs.6,000,000 awarded as special damages for the replacement of the respondent's damaged car to be deposited by the applicant in an interest-bearing bank account in the joint names of the advocates for the applicant and respondent within 14 days.
- Failure to deposit within 14 days will render the stay void.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, TUNOI & O'KUBASU, JJ.A.) CIVIL APPLICATION NO. NAI. 53 OF 2000 (24/00 UR) BETWEEN
1. EXPRESS KENYA LIMITED 2. ALI BAKARI ALI ......................................APPLICANTS AND M. M. J. KISOSO .......................................RESPONDENT
(An application for stay of Execution in an intended Appeal from a Judgment of the High Court of Kenya at Nairobi (Justice Hayanga) dated 21st December, 1999 in H.C.C.C. NO. 2865 OF 1993) ************* RULING OF THE COURT
We are not convinced that the respondent is a man of straw who would if the appellant's appeal succeeds, not be able to disgorge what has been paid to him. He also in his replying affidavit does not seem to mind if the decretal sum is deposited in the joint names of his advocate and that of the applicant, pending the disposal of the intended appeal.
We also bear in mind that some claims for special damages such as the cost of a new vehicle to replace the one damaged in the road accident, were not specifically pleaded. In the circumstances, what seems to be just to us is that by way of stay of the execution of the decree in this matter, the decretal amount minus the Kshs.6,000,000/- awarded as special damages for the replacement of the respondent's damaged car, be deposited by the applicant in an interest bearing bank account in the joint names of the advocates of the applicant and the respondent within 14 days from today until the determination of the applicant's intended appeal. Failure to make the deposit within the 14 days will render the stay granted herein void. Cost will be in the appeal.
Dated and delivered at Nairobi this 6th day of June, 2000.
A. M. AKIWUMI ................... JUDGE OF APPEAL
P. K. TUNOI ................... JUDGE OF APPEAL
E. O'KUBASU .................. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.