[2014] KEHC 8052 (KLR)
The court found that the appellant failed to provide any evidence of substantial loss that would be suffered if the decree for costs and interest was executed. The mere assertion of irreparable harm in the supporting affidavit, without further factual basis or evidence, was insufficient. The application for stay of...
Source-derived case information.
- Citation
- [2014] KEHC 8052 (KLR)
- Parties
- Appellant: Fidelity Shield Insurance Co Limited; Respondent: Mashariki Motors; Respondent: Paul Chemng’orem
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Stay of Execution, Costs Award, Interest on Judgment, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelity Shield Insurance Co Limited
Appellant
Mashariki Motors
Respondent
Paul Chemng’orem
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant demonstrated substantial loss as required for grant of stay of execution pending appeal.
- 2 Whether the application for stay was filed without unreasonable delay.
- 3 Whether security for due performance was provided as required by law.
Ratio Decidendi
The court found that the appellant failed to provide any evidence of substantial loss that would be suffered if the decree for costs and interest was executed. The mere assertion of irreparable harm in the supporting affidavit, without further factual basis or evidence, was insufficient. The application for stay of execution was filed without delay and security had been deposited as ordered for interim stay, but the failure to establish substantial loss was fatal to the application. Consequently, the application lacked merit and was dismissed with costs, and the interim stay was vacated.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed with costs.
- The interim stay of execution is vacated.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 24 OF 2014
FIDELITY SHIELD INSURANCE CO LIMITED…………..…APPELLANT
V E R S U S
1. MASHARIKI MOTORS
2. PAUL CHEMNG’OREM……………………………..RESPONDENTS
R U L I N G
1. The Appellant herein appealed against the decree of the lower court only as it related to costs and interest awarded to the 1st Respondent. It then applied by notice of motion dated 18th February, 2014for stay of execution of that portion of the decree pending disposal of the appeal. The main grounds for the application stated on the face thereof are that if the decree for costs and interest is executed against it the appeal will be rendered nugatory; and that the Respondents will not be prejudiced by the stay of execution sought. The application is opposed by the 1st Respondent.
2. Under Order 42, rule 6(2)of the Civil Procedure Rules, 2010 (the Rules) the Appellant is obliged to satisfy the Court that the application was filed without unreasonable delay, and that it stands to suffer substantial loss unless the stay sought is granted. If stay is granted the Appellant must then give such security as the Court may order for the due performance by it of the portion of the decree appealed against it should its appeal fail. In this regard I note that the decretal sum for costs and interest was deposited in Court by order of the Court as a condition for interim stay of execution.
3. As for delay, I note that the application was filed together with the memorandum of appeal. The appeal itself was lodged within time. There was no delay in applying.
4. Regarding substantial loss, it is stated at paragraph 8 of the supporting affidavit sworn by one Gladwell Kamau, an Assistant Manager of the Appellant, that
“...the applicant will suffer irreparable harm and/or loss if the 1st Respondent executes....”
There is absolutely nothing else! There is no allegation that the Appellant will not able to recover the costs and interest from the 1st Respondent should it succeed in its appeal, or that such recovery can only be with considerable difficulty and cost.
5. Substantial loss is a matter of fact. The Appellant has not provided any evidence of any substantial loss it might suffer if it pays the decree for costs and interest.
6. In the event, I find no merit in the application. It is dismissed with costs. The interim stay of execution now in place is hereby vacated. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 10th DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 11TH DAY OF JULY 2014