[2017] KEHC 6544 (KLR)
The court found that the applicant had demonstrated substantial loss, as the decretal sum was significant and there was doubt as to the respondent's ability to refund the amount if the appeal succeeded. The application for stay was filed promptly after the judgment, satisfying the requirement of timeliness. The...
Source-derived case information.
- Citation
- [2017] KEHC 6544 (KLR)
- Parties
- Appellant: Francis Miuthee T/A Bell Mart; Respondent: Kenya Orient Insurance Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 198 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition of deposit of balance of decretal sum.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Miuthee T/A Bell Mart
Appellant
Kenya Orient Insurance Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay of execution is denied.
- 2 Whether the application for stay of execution was filed without unreasonable delay.
- 3 Whether adequate security for the due performance of the decree has been offered.
Ratio Decidendi
The court found that the applicant had demonstrated substantial loss, as the decretal sum was significant and there was doubt as to the respondent's ability to refund the amount if the appeal succeeded. The application for stay was filed promptly after the judgment, satisfying the requirement of timeliness. The applicant also offered to deposit the balance of the decretal sum as security. Accordingly, the court allowed the application for stay of execution on condition that the applicant deposits the balance of the decretal sum in an interest-earning joint account within 30 days, failing which the application would be deemed dismissed.
Court Disposition
Application for stay of execution allowed on condition of deposit of balance of decretal sum.
Orders
- The motion dated 3rd June 2016 is allowed in terms of prayer 4.
- The respondent/applicant shall deposit the balance of the decretal sum of Ksh. 1,344,440 in an interest earning account in the joint names of the advocates within 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 198 OF 2013
FRANCIS MIUTHEE T/A BELL MART................................ APPELLANT
- V E R S U S -
KENYA ORIENT INSURANCE LIMITED...........................RESPONDENT
RULING
1. Kenya Orient Insurance Co. Ltd, the respondent/applicant, took out the motion dated 3rd June 2016, in which it sought for interalia an order for stay of execution pending appeal. The motion is supported by the affidavit of Terry Maina. When served, Francis Muchee T/A Bell Matt, filed a replying affidavit he swore to oppose the motion. When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the application disposed of by written submissions.
2. I have considered the grounds stated on the face of the motion and the facts deponed in the supporting and replying affidavits. I have also considered the rival submissions. It is the submission of the respondent/applicant that it has filed a notice of appeal expressing its intention to challenge on appeal before the Court of Appeal the judgement of this court delivered on 20th May 2016. The respondent/applicant has argued that unless the order for stay is given then it would suffer substantial loss. It further stated that it is willing to provide security for the due performance of the decree. The respondent urged this court not to grant the order arguing that the decree being a money decree, no order for stay can be granted since he is able to refund the same when needed. The Respondent also stated that he has assets which can be attached in case of default. He was of the opinion that there is no evidence that the respondent will suffer substantial loss.
3. There is no dispute that this court delivered its ruling on 20. 5.2016 in which this court set aside the order of the trial court which had set aside the exparte judgment entered on 20. 6.2012 by substituting it with an order dismissing the motion dated 25. 9.2012. The consequence of the judgment on appeal is that unless the order for stay is given, the appellant/respondent will cause the decree to be executed to recover the decretal sum of ksh.2,782,500/=.
4. The appellant/respondent has said that he will give security in form of assets which can be attached if he fails to refund the money if the appeal is successful.
5. The principles to be considered in determining an application for stay are well settled. First an applicant must show the substantial loss it would suffer if the order for stay is denied. In this motion, the respondent/applicant is saying that it will be required to settle a total sum of ksh.3,024,440/= being the decretal sum which amount is colossal and beyond the amount secured. According to the respondent/applicant, that amounts a substantial loss. The appellant/respondent has pledged to provide a collateral to be attached if he fails to make a refund. It is clear to me that the appellant/respondent does not have the financial capacity to refund the decretal sum in form of cash should the appeal succeed. In my view, the respondent/applicant has shown the substantial prejudice it may be subjected to in trying to recover the decretal sum from the appellant/respondent.
6. The second principle to consider is whether the application was filed without unreasonable delay. It is clear from the record that this court’s decision was delivered on 20. 5.2016 while the motion for stay was filed on 9. 6.2016. I am convinced the motion was timeously filed.
7. The third principle to consider is on security. The respondent/ applicant has proposed to deposit the decretal sum.
8. In the end, I am satisfied that the motion dated 3rd June 2016 is well founded. It is allowed in terms of prayer 4 on condition that the respondent/applicant deposits the balance of the decretal sum of 1,344,440/= in an interest earning account in the joint names of learned advocates and or firms of advocates appearing in this matter within a period of 30 days. In default the motion will be deemed to have been dismissed.
Dated, Signed and Delivered in open court this 24th day of March, 2017.
J. K. SERGON
JUDGE
In the presence of:
.......................................... for the Applicant
.......................................... for the Respondent