[2023] KEHC 23325 (KLR)
The court found that the application for stay of execution was filed within a reasonable time, satisfying the requirement of timeliness. The applicants demonstrated substantial loss by averring that the respondent would not be able to refund the decretal sum if the appeal succeeded, and the respondent failed to...
Source-derived case information.
- Citation
- [2023] KEHC 23325 (KLR)
- Parties
- Appellant: Kennedy Bundi Gikunda; Appellant: County Government of Meru; Appellant: Meru County Government; Respondent: Shadrack Mwiti Muguna (Suing As Legal Representative Of Jesse Muriuki Mwiti (Deceased))
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E091 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed with conditions.
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Appeal Process
- 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
Kennedy Bundi Gikunda
Appellant
County Government of Meru
Appellant
Meru County Government
Appellant
Shadrack Mwiti Muguna (Suing As Legal Representative Of Jesse Muriuki Mwiti (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the applicants have demonstrated substantial loss if stay is not granted.
- 3 Whether the applicants have offered adequate security for due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was filed within a reasonable time, satisfying the requirement of timeliness. The applicants demonstrated substantial loss by averring that the respondent would not be able to refund the decretal sum if the appeal succeeded, and the respondent failed to rebut this assertion by not filing a response. The applicants also expressed willingness to provide security for the due performance of the decree, fulfilling the third requirement under Order 42 Rule 6 of the Civil Procedure Rules. Accordingly, the court held that the applicants had met the conditions for the grant of stay of execution pending appeal and allowed the application on...
Court Disposition
Application for stay of execution pending appeal allowed with conditions.
Orders
- Stay of execution of judgment in Meru CMCC No. E006 of 2022 granted pending hearing and determination of the appeal, on condition that applicants deposit KES 1,000,000 with the court within 30 days.
- Appellants to file and serve the record of appeal within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
30 paragraphs
Gikunda & 2 others v Muguna (Suing as legal representative of Jesse Muriuki Mwiti (Dececased) (Civil Appeal E091 of 2023) [2023] KEHC 23325 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23325 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E091 of 2023
TW Cherere, J
October 5, 2023
Between
Kennedy Bundi Gikunda
1st Appellant
County Government of Meru
2nd Appellant
Meru County Government
3rd Appellant
and
Shadrack Mwiti Muguna (Suing As Legal Representative Of Jesse Muriuki Mwiti (Dececased)
Respondent
Ruling
1. On 22nd May, 2023, the trial court entered judgment in Meru CMCC No. E006 of 2022 in favour of the Respondent as against the Applicants for KES. 2,558,036/- plus costs and interest.
2. By notice of motion dated and filed on 22nd June, 2023, Applicants seek orders stay of execution of judgment in Meru CMCC No. E006 of 2022 pending the hearing and determination of the appeal. The notice of motion is premised on grounds on its face and on the affidavit sworn by Sara Weru, a legal officer with MUA Insurance Kenya Ltd in which she avers that the Respondents are aggrieved by the judgment and have filed an appeal which has high chances of success.
3. Respondent was by an order dated 2th July, 2023 granted leave to file his response to the application but by the time of writing this ruling, the responxse had not been filed.
Analysis and Determination 4. I have considered the application in light of the supporting affidavit and the issue for determination is whether a case has been made for an order of stay of execution pending appeal.
5. Order 42 (6) of the Civil Procedure Rules provides that no order for stay of execution shall be made unless application has been made without unreasonable delay; substantial loss is demonstrated and security for the due performance of such decree or order is offered. (See Endmor Steel Millers Ltd vs James Wakhulunya Makuto [2016] eKLR).
6. The impugned judgment was delivered on 22nd May, 2023 and this application was filed timeously on 22nd June, 2023 exactly one month after the judgment was delivered.
7. I have considered the provisions of Order 42 (6) of the Civil Procedure Rules vis a vis whether Applicant has demonstrated that it is likely to suffer substantial loss if stay of execution is not granted. Substantial loss, in its various forms is the corner stone of best jurisdictions for granting a stay. (See Standard Assurance Co. Ltd V Alfred Mumea Komu [2008] eKLR).
8. A party seeking an order of stay pending appeal bears a specific burden regarding proof of substantial loss. In this case, It has been averred on behalf of Applicants that Respondent is not in a position to refund the decretal sum in the event that the pending appeal was to succeed. Respondent having not filed a response has not discharged the evidential burden placed on him to demonstrate that he is in a position to refund the decretal sum in the event that the pending appeal succeeds. Consequently, I find that Applicants have demonstrate substantial loss.
9. The Respondent was awarded general damages in the sum of KES. 2,558,036/- plus costs and interest. Security is a legal requirement under 42 (6) (2) (c) of theCivil Procedure Rules and it has been averred on behalf of Applicants that they are ready and willing to comply with the order on security.
10. Whereas it is not my duty at this stage to determine if the Applicants have an arguable appeal, Appellants have met two conditions for grant of an order for stay of execution pending appeal.
11. In the end, notice of motion dated and filed on 22nd June, 2023 is allowed in the following terms:1. There shall Meru CMCC No. E006 of 2022 pending the hearing and determination of the appeal on condition that the Applicants shall deposit KES. 1,000,000/- (one million shillings) with the court within 30 days from today’s date2. Appellants are directed to file and serve the record of appeal within 30 days from today’s date3. Costs shall abide the outcome of the intended appeal4. Mention on 23rd November, 2023 to confirm compliance with these orders and for further directions
DATED IN MERU THIS 05TH DAY OF OCTOBER 2023T.W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant - Ms. Oteko for Kiruki & Kayika AdvocatesFor Respondent - Mr. Nyaga for Kiautha Arithi & Co. Advocates