[2021] KEHC 6692 (KLR)
The court found that the applicant had sufficiently explained the delay in filing the application for stay of execution, as the proceedings from the lower court were only supplied shortly before the application was filed. The applicant demonstrated apprehension that the decretal sum may not be recoverable if the...
Source-derived case information.
- Citation
- [2021] KEHC 6692 (KLR)
- Parties
- Appellant: Isuzu East Africa Limited (formerly General East Africa Limited); Respondent: RAA (Minor suing through her father and next friend); Respondent: Moses Ndirangu; Respondent: Ngaywa Ngigi & Kibet Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 450 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Decretal Sum Security, Appeal Delay, Substantial Loss, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isuzu East Africa Limited (formerly General East Africa Limited)
Appellant
RAA (Minor suing through her father and next friend)
Respondent
Moses Ndirangu
Respondent
Ngaywa Ngigi & Kibet Advocates
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 delay in filing the application for stay was unreasonable or sufficiently explained.
- 3 Whether the respondent's ability to refund the decretal sum if the appeal succeeds has been demonstrated.
Ratio Decidendi
The court found that the applicant had sufficiently explained the delay in filing the application for stay of execution, as the proceedings from the lower court were only supplied shortly before the application was filed. The applicant demonstrated apprehension that the decretal sum may not be recoverable if the appeal succeeds, and the respondent did not provide evidence of ability to refund the sum. Applying the principle that the evidential burden shifts to the respondent in such circumstances, the court held that the applicant had met the threshold for grant of stay of execution. To balance the interests of both parties, the court ordered that the decretal sum be deposited in a joint...
Court Disposition
application allowed with conditions
Orders
- Stay of execution granted on condition that the decretal sum is deposited in a joint interest earning bank account of the advocates for the applicant and the 1st respondent or in court within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 450 OF 2019
ISUZU EAST AFRICA LIMITED(FORMERLYGENERAL EAST AFRICA
LIMITED).........................................................APPELLANT/APPLICANT
VERSUS
RAA (Minor suing thro” Her father and next friend ......1ST RESPONDENT
MOSES NDIRANGU...................................................2ND RESPONDENT
NGAYWA NGIGI & KIBET ADVOCATES.................3RD RESPONDENT
RULING
1. The application dated 18th December, 2019 seeks orders that this honourable court be pleased to grant an order for stay of execution of the Decree dated 1st February, 2018 and issued on 15th February, 2019 pending the Hearing and determination of the Appellant’s intended Appeal evidenced upon the grounds raised in the annexed Memorandum of Appeal filed on 2nd August, 2019.
2. The application is predicated on the grounds stated therein and the supporting affidavit. It is averred that the judgment of the lower court was delivered on 1st February, 2018 following ex-parte proceedings. That the Applicant became aware of the judgment following service of warrants of Attachment of Moveable Property in execution of the Decree. That the Applicant applied for orders for stay of execution and the setting aside of the judgment but the application was dismissed on 5th July, 2018 and thereby triggered the filing of the application at hand.
3. It is further deponed that the Appeal is arguable with good chances of success but stands to be rendered nugatory if the application is not allowed. That the decretal sum is a colossal amount and may be difficult to be recovered. It is further stated that the Applicant applied for the typed proceedings of the lower court vide letter dated 8th July, 2019 but the same were supplied on 13th December, 2019.
4. The application is opposed by the 1st Respondent. It is stated in the replying affidavit that the judgment delivered is regular and that the Appeal has no chances of success. That the conditions for stay of execution have not been met and that the application is meant to delay the 1st Respondent from enjoying the fruits of the judgment.
5. The 2nd and 3rd Respondents did not reply to the application though served.
6. The application was canvassed by way of written submissions. I have considered the application, the response to the same and the submissions filed.
7. In an application for stay of execution, Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides as follows:
“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 unreasonable 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.”
8. The ruling of the lower court was delivered on 5th July, 2019 in the presence of both parties. The instant application was filed on 18th December, 2019. It has been explained that the proceedings of the lower court were supplied on 13th December, 2019. This is not disputed. The letter dated 8th July, 2019 requesting for the proceedings and judgment was stamped as received in court on 22nd July, 2019. This court accepts the explanation for the delay.
9. The Applicant is apprehensive that the decretal sum may not be recoverable in the event that the Appeal is successful. The Respondent has remained silent about his capability to refund the decretal sum. The same is reflected in the warrants of Attachment as Ksh.563,859. 52. As stated by the Court of Appeal in the case of Nrb Civil Application 238 of 2005 (UR 144/2005) National Industrial Credit Bank Ltd -Vs- Aquinas Francis Wasike & Another:
“This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge – see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.”
10. To balance the competing interests of the parties herein, the application is allowed on condition that the decretal sum is deposited in a joint interest earning bank account of the advocates for the Applicant and the 1st Respondent herein or in court within 30 days from the date hereof.
DATE, SIGNED AND DELIVERED AT NAIROBI THIS 20TH DAY OF MAY, 2021
B. THURANIRA JADEN
JUDGE