[2014] KEHC 6814 (KLR)
The court found that the applicants had demonstrated a real threat of execution, as their goods had already been proclaimed, and that if execution proceeded, the appeal would be rendered nugatory. The respondent had not shown capacity to refund the decretal sum if the appeal succeeded, shifting the evidential burden...
Source-derived case information.
- Citation
- [2014] KEHC 6814 (KLR)
- Parties
- Appellant: Joseph Wamburu Tumbu; Appellant: Simon Kimani Tumbu; Respondent: Michael Mutiso Mulwa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 136 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on condition.
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wamburu Tumbu
Appellant
Simon Kimani Tumbu
Appellant
Michael Mutiso Mulwa
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 substantial loss may result to the applicants if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the applicants had demonstrated a real threat of execution, as their goods had already been proclaimed, and that if execution proceeded, the appeal would be rendered nugatory. The respondent had not shown capacity to refund the decretal sum if the appeal succeeded, shifting the evidential burden to him. The application for leave to appeal out of time had already been allowed, and the appeal was filed promptly thereafter, indicating no unreasonable delay. Although the applicants claimed to have deposited security in the form of an insurance bond, the court, considering the need to balance the interests of both parties, ordered that 50% of the decretal sum be paid to...
Court Disposition
Application for stay of execution allowed on condition.
Orders
- The applicants shall pay 50% of the decretal sum to the respondent within 30 days from the date of the ruling.
- In default of payment, execution to issue.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 136 OF 2013
JOSEPH WAMBURU TUMBU
SIMON KIMANI TUMBU …… APPELLANT/APPLICANTS
VERSUS
MICHAEL MUTISO MULWA …………………….… RESPONDENT
R U L I N G
The application dated 22/7/13 is brought under Order 42 Rule 6 (1) (2) Order 51 Rule 1 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and all other enabling provisions of the law. The application seeks an order for stay of execution of the judgment delivered on 21st November 2012 pending the hearing and determination of the Appeal No. 136 of 2013 on similar terms as those given in the application seeking leave to appeal out of time being Misc. Application No. 28 of 2013.
The application is supported by the affidavit of Lilian Munyiri sworn on 22/7/2013. According to the said application, judgment was delivered by the lower court on 21/11/2012. An application seeking the leave of the court to appeal out of time was allowed on 27/6/13. The Applicants’ fear is that the Respondent may move to execute before the determination of this appeal, thereby rendering the appeal nugatory.
In opposition to the application, the Respondent swore a replying affidavit on 29/7/13. The Respondent’s stand is that the Applicants have not demonstrated what prejudice would be suffered if the stay pending appeal is not granted. That liability was conceded on 80:20 basis and judgment entered for a sum of Kshs.120,000/=.
The application was canvassed by way of written submissions which I have duly considered.
The conditions to be met under Order 42 rule 6 (2) are as follows:
“No order for stay of execution shall be made undersubrule (1)unless –
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
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.”
The threat of execution is real. According to the affidavit in support, the Applicants’ goods had already been proclaimed before a stay was granted. If the execution proceeds the appeal will be rendered nugatory. The Respondent has not demonstrated that he is capable of refunding the decretal sum should the appeal succeed. As stated by the Court of Appeal in National Industrial Credit Bank Ltd –vs- Aquinas Francis Wasike & Another Civil Application Nai 238 of 2005 (UR. 144/2005):-
“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 examplesection 112of theEvidence Act,Chapter 80 Laws of Kenya.”
The application to appeal out of time was allowed on 26/6/2013 according to the unchallenged contention in the affidavit in support. The appeal was filed on 2/7/2013. The delay must have therefore been explained in the application to appeal out of time.
Although the Applicant has averred that security in the form of an insurance bond has already been deposited, I note from the Memorandum of Appeal that the Applicants’ complaint is that the award of General Damages was manifestly excessive. The Respondent’s liability was conceded in his favour at 80:20. The court must therefore balance the interests of both parties.
As stated by the Court of Appeal in Kenya Shell Ltd. Vs Kibiri & Another (1986) KLR
“In applications for stay the court should balance the parallel prepositions, first that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause and secondly that execution would render the proposed appeal nugatory.”
Taking into account the circumstances of this case, my view is that the interests of justice will be served by the payment of 50% of the decretal sum while the applicants pursue their appeal.
Consequently, I allow the application on condition that the Applicant do pay 50% of the decretal sum to the Respondent within 30 days from the date hereof. In default execution to issue.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 13thday of February2014.
………………………………………
B. THURANIRA JADEN
JUDGE