[2023] KEHC 26464 (KLR)

Geminia Insurance Co. Limited v Nchoe (Civil Appeal E004 of 2023) [2023] KEHC 26464 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26464 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Civil Appeal E004 of 2023

F Gikonyo, J

December 7, 2023

Between

Geminia Insurance Co. Limited

Appellant

and

Nelly Naserian Nchoe

Respondent

(Being an application for stay of execution pending appeal of the judgment dated 04. 07. 2023 Kilgoris SPMCC NO. E024 of 2022. )

Ruling

Stay of execution pending appeal 1. The significant orders sought in the Notice of Motion dated 17. 08. 2023, are.i.Stay of execution of the judgment delivered by the Hon. Maritim on 4th July 2023 in Kilgoris PMCC No. E024 of 2022 Nelly Naserian Nchoe Vs Geminia Insurance Co. Ltd pending the hearing and determination of the appeal herein.ii.That the costs of this application be provided for.

2. The application is premised upon the grounds set out in the application and supporting affidavit sworn on 17. 08. 2023 by David Nyaundi, the applicant’s Senior Claims Officer.

3. The deponent averred that the appellant is highly aggrieved by the judgment of the trial court and thus lodged the appeal herein. The stay of execution granted in the first instance has since lapsed. The execution of the judgment is thus eminent and should it proceed, the appellant’s appeal shall be rendered nugatory unless the orders sought herein are granted.

4. The deponent further averred that the application has been filed without undue delay.

5. The respondent has not filed any replies despite being served with the application herein.

Directions of the court 6. On 13. 09. 2023, this court (Kariuki J.) ordered that there be a stay of execution of the judgment delivered by Hon. Maritim on July 4, 2023 in Kilgoris PMCC No. E024 of 2022 Nelly Naserian Nchoe vs Geminia Insurance Co. Ltd pending the hearing and determination of this application.

Analysis and Determination 7. The main issue for determination is whether there is sufficient reason to order a stay of execution pending appeal.

8. Ordinarily, a court of law would order a stay of execution pending appeal where there is sufficient cause to do so. Proof that substantial loss would occur, is sufficient cause for which stay of execution pending appeal will be granted under order 42 rule 6 of the Civil Procedure Rules. Such is a loss of real worth and not merely nominal; loss that is tantamount to routing the right of appeal. Therefore, a stay of execution pending appeal is to prevent substantial loss from occurring, thereby, preserving the right of appeal.

9. See RWW v EKW [2019] eKLR, on the purpose of a stay of execution pending appeal: -“…is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.

10. However, in making an order for stay pending appeal, the court must balance the rights of both parties so as none is prejudiced. Notably, the right of the respondent to the fruits of his/her judgment should not be deprived.

11. The application for stay of execution pending appeal should also have been made without unreasonable delay. And, the court may attach conditions to the stay of execution pending appeal which includes but not limited to calling for security for the due performance of the decree which may ultimately become due. See Antoine Ndiaye v African Virtual University [2015] eKLR.

12. In the instant case, the applicant has argued that the respondent’s financial means and attachable assets, and her whereabouts are not known to the appellant. Thus, if the appeal succeeds, it shall not be possible to recover the decretal sum if paid to her.

13. The applicant has also averred that they are ready, able and willing to furnish reasonable security for the due performance of the decree as may be ordered by the court.

14. The Respondent has not filed any response. However, the court will evaluate the merit of the application.

15. In the absence of any explanation or affidavit of means, the applicant’s assertion that the respondent does not have the ability to repay the decretal sum in case the appeal succeeds is uncontroverted. Accordingly, as this is a money decree, inability to recover the decretal sum from the respondent if the appeal succeeds, will occasion substantial loss upon the appellant; they will become holders of a barren success. Therefore, it has been proved that substantial loss would occur upon the applicant unless an order of stay of execution is made.

16. The court is also satisfied that the application has been filed without any or inordinate delay as the judgment appealed against was delivered on 04. 07. 2023 and the Memorandum of Appeal was filed seven days later on 11. 07. 2023.

17. The applicant averred that is ready and willing to furnish reasonable security for the due performance of the decree as may be ordered by the court. Where the security to be provided is a deposit of money, the court should always consider the fact that money depreciates unless it is invested; and appropriate investment which will act as security for purposes of order 42 rule 6 of the CPR should be in an interest-earning account for the period of the appeal. This practice evolved within money-laundering regimes. But, it has gained traction in civil process. Advisably, deposits in court of cash as security should be avoided.

18. In the upshot, the appellant/applicant’s application dated 17. 08. 2023 is allowed in the following specific terms: -i.A stay of execution of the decree in Kilgoris PMCC No. E024 of 2022 Nelly Naserian Nchoe Vs Geminia Insurance Co. Ltd is granted pending the hearing and determination of the appeal.ii.The stay is on condition that the appellant/applicant shall deposit the entire decretal sum into an interest-earning account in a reputable commercial Bank, in the names of and to be held by the advocates for the parties in this appeal, within 45 days of this ruling;iii.The appellant shall file and serve a record of appeal within thirty (30) days of this ruling;iv.Costs shall be in the cause;v.The appeal shall be mentioned on 5. 2.2024 for directions on the hearing of the appeal.

19. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH THE TEAMS APPLICATION, THIS 7THDAY OF DECEMBER, 2023. …………………………………HON. F. GIKONYO M.JUDGEIn the presence of:-1. Mr. Mugambi for Appellant2. Leken C/A