[2015] KEHC 1621 (KLR)
The court found that the application for stay of execution was filed without unreasonable delay. While there was no conclusive evidence that the respondent was incapable of repaying the decretal sum if the appeal succeeded, there was also no evidence that the applicants could satisfy the decree without difficulty....
Source-derived case information.
- Citation
- [2015] KEHC 1621 (KLR)
- Parties
- Appellant: Hamza M. Omar; Appellant: Hanafi Abdi Shughuli; Respondent: Frida Pendo Kapumu a.k.a Fridah Pendo George
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 31 of 2015
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- Application for stay of execution granted on condition of security deposit.
- Judges
- SJ Chitembwe
- Legal Topics
- Stay of Execution, Security for Costs, Substantial Loss, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamza M. Omar
Appellant
Hanafi Abdi Shughuli
Appellant
Frida Pendo Kapumu a.k.a Fridah Pendo George
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the applicants have met the conditions for grant of stay of execution pending appeal.
- 2 Whether the applicants will suffer substantial loss if stay is not granted.
- 3 Whether the application was filed without unreasonable delay.
Ratio Decidendi
The court found that the application for stay of execution was filed without unreasonable delay. While there was no conclusive evidence that the respondent was incapable of repaying the decretal sum if the appeal succeeded, there was also no evidence that the applicants could satisfy the decree without difficulty. The court determined that, in the interests of justice and to balance the parties' rights, stay should be granted on condition that the applicants provide security by depositing KES 300,000 either in court or in a joint account of both counsels within ninety days. This would protect the respondent's interests while allowing the applicants to pursue their appeal.
Court Disposition
Application for stay of execution granted on condition of security deposit.
Orders
- Applicants to deposit KES 300,000 in court or in a joint account of both counsels within ninety (90) days.
- Costs shall follow the outcome of the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL APPEAL NO.31 OF 2015
(Being an appeal from judgment delivered by Hon. Mrs. Obura in Kilifi SRM CC No.124 of 2011)
HAMZA M. OMAR...............................................................1ST APPLICANT
HANAFI ABDI SHUGHULI...................................................2ND APPLICANT
VRS
FRIDA PENDO KAPUMUa.k.a FRIDAH PENDO GEORGE.........RESPONDENT
RULING
The respondent was awarded less 10% contributory negligence by the Kilifi Court in Kilifi SRM CC No.124 of 2011. Counsel for the respondent tabulated the payable amount including costs and interest to be Ksh.365,270/-. Being dissatisfied with the award, the appellant filed Civil Appeal No. 31 of 2015 before this court.
The application dated 12/8/2015 seeks an order of stay of execution pending the hearing and determination of the appeal. Parties agreed to determine the application by way of written submissions. I have read the submissions by the applicants' counsels and it is contended that the appeal will be rendered nugatory if the application is not granted. The award is excessive and if paid, the applicants will not be able to recover it from the respondent. There is threat to execute against the applicants.
On his part, counsel for the respondent maintains that the application does not meet the requirements for the granting of the orders being sought. There is no evidence that the applicants will suffer substantial loss or that the respondent is a man of straw. The applicants are only apprehensive and this is not enough. The applicants do not know the respondent and cannot allege that he is a man of straw. It is also submitted that Erastus Mwaniki Advocate purported to depone facts on behalf of the defendants without their authority. Counsels would like to have the affidavit in support of the application struck out.
The record shows that the judgment of the trial court was issued on 11th June, 2015. The application was filed on 14th August, 2015. This was a period of about two months. I do find that the application was filed without unreasonable delay. The next issue is that of substantial loss. Although there is evidence that, the applicants were insured by Direct Line Insurance Company Limited, the suit was against the applicants individually. The decree is against them. There is no evidence that the respondent is capable of repaying the amount should the appeal succeed even if it has not been shown that, he is not a man of straw. Equally, it is not clear if the applicants are capable of satisfying the decretal sum without any difficulties. The intended appeal is aimed at challenging the amount of general damages awarded by the court.
The court has to balance between the applicants' right to pursue their appeal and the respondent's right to enjoy the fruit of his judgment. I do find that for the interest of justice, the applicants do provide security while they pursue their appeal. The applicants should deposit a sum of ksh.300,000/- to act as security while they pursue their appeal.
In the end, I do find that the application herein is merited and the same is granted on condition that the applicants do deposit either in court or in a joint account of both counsels a sum of ksh.300,000/- within ninety (90) days hereof. Costs shall follow the outcome of the appeal.
Dated, signed and delivered at Malindi this 3rd day of November, 2015.
SAID J. CHITEMBWE
JUDGE