[2015] KEHC 414 (KLR)
The court found that the application for stay of execution was filed promptly and that there was no delay. The applicant demonstrated apprehension that the respondent may not be able to refund the decretal sum if the appeal succeeds, which could result in substantial loss. The court recognized the need to balance...
Source-derived case information.
- Citation
- [2015] KEHC 414 (KLR)
- Parties
- Appellant: Gilbert Mokua Bitange; Respondent: Godfrey Kinyua Muriiti
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 111 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Due Performance, Assessment of Damages, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Mokua Bitange
Appellant
Godfrey Kinyua Muriiti
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the award of damages by the lower court was excessive and warrants interference on appeal.
- 3 Whether security for due performance should be ordered and in what terms.
Ratio Decidendi
The court found that the application for stay of execution was filed promptly and that there was no delay. The applicant demonstrated apprehension that the respondent may not be able to refund the decretal sum if the appeal succeeds, which could result in substantial loss. The court recognized the need to balance the interests of both parties: the applicant's right to appeal and the respondent's right to enjoy the fruits of judgment. Accordingly, the court granted a conditional stay of execution, requiring the applicant to release 50% of the decretal sum to the respondent and deposit the balance in court or in a joint interest-earning account within 45 days, failing which execution would...
Court Disposition
Application for stay of execution allowed on condition.
Orders
- Applicant to release 50% of the decretal sum to the respondent.
- Applicant to deposit the balance of the decretal sum in court or in an interest-earning bank account in the names of both parties within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 111 OF 2014
GILBERT MOKUA BITANGE..............................................APPELLANT
VERSUS
GODFREY KINYUA MURIITI............................................RESPONDENT
R U L I N G
1). The application dated 31-7-2014 seeks orders that there be a temporary stay of execution of the decree issued in Kajiado RMCC No. 118 of 2007 pending the hearing and determination of this appeal.
2). It is stated in the affidavit in support that the judgment of the lower court was delivered on 20-6-2014. That liability was agreed upon by the parties and the court assessed the general damages at 750,000/=, special damages of Kshs. 62,105/= plus costs and interest.
3). The applicant’s contention is that the said award is excessive, hence the appeal herein. The applicant is apprehensive that the respondent will commence execution proceedings thereby rendering this appeal nugatory. According to the applicant, the respondent is unlikely to refund the decretal sum in the event that the appeal is successful. The applicant is ready and willing to give security for the due performance of the decree.
4). The application is opposed. It is averred in the verifying affidavit that the assessment of damages by the court was reasonable and commensurate with the injuries sustained. The respondent’s stand is that the application is meant to deny him the enjoyment of the fruits of his judgment. That there is no irreparable damage that will be suffered by the applicant if the application is not allowed. The applicant stated that liability was by consent and the applicant should now pay up.
5). The application was argued by way of written submission which I have duly considered.
6). Under Order 42 6 (2) states:
“No order for stay of execution shall be made under sub rule (1) unless:
a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without reasonable delay and,
b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant”.
7). The application herein was filed timeously. There are no allegations of delay. The appeal was filed within ten days of the delivery of the judgment. The application at hand was filed within less than two months following the delivery of the judgment.
8). The judgment on liability was entered by the consent of the parties. The applicant’s contention is that the award of general damages is excessive. To balance the interest of both parties, the respondent should enjoy some of the fruits of the judgment.
9). With the foregoing, I allow the application on the condition that the applicant do release the respondent 50% of the decretal sum and deposit the balance in court or an interest earning bank account of both parties herein within 45 days from the date hereof. In default execution to issue.
Dated, signed and delivered at Machakos this 2nd day of December, 2015.
B. THURANIRA JADEN
JUDGE