[2018] KEHC 9111 (KLR)
The court found that the application for stay of execution was filed without delay and that the applicant had expressed a reasonable fear that the respondent may not be able to refund the decretal sum if the appeal succeeds. The respondent failed to provide sufficient details of her resources to demonstrate her...
Source-derived case information.
- Citation
- [2018] KEHC 9111 (KLR)
- Parties
- Applicant: Kanake Peter Wahiire; Respondent: Joseph Maina Kamau; Respondent: Geoffrey Kamau Maina (suing as the Administrator of the estate of Cicilia Riguru Maina, Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 691 of 2017
- 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 Due Performance, Substantial Loss, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kanake Peter Wahiire
Applicant
Joseph Maina Kamau
Respondent
Geoffrey Kamau Maina (suing as the Administrator of the estate of Cicilia Riguru Maina, Deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules, 2010.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 What form of security is appropriate for the due performance of the decree.
Ratio Decidendi
The court found that the application for stay of execution was filed without delay and that the applicant had expressed a reasonable fear that the respondent may not be able to refund the decretal sum if the appeal succeeds. The respondent failed to provide sufficient details of her resources to demonstrate her ability to refund the sum. Applying the principle that the evidential burden shifts to the respondent in such circumstances, the court determined that the applicant had satisfied the requirements for stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules. To balance the interests of both parties, the court ordered that the decretal sum be deposited in a joint...
Court Disposition
Application for stay of execution allowed on condition.
Orders
- The applicant shall deposit the decretal sum in a joint interest earning bank account of the counsel for the applicant and the respondent or in court within 30 days from the date hereof.
- Costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 691 OF 2017
KANAKE PETER WAHIIRE......................................................APPLICANT
VERSUS
JOSEPH MAINA KAMAU......................................................RESPONDENT
GEOFFREY KAMAU MAINA (suing as the Administration
of the estate of CICILIA RIGURU MAINA (Deceased).......RESPONDENT
RULING
1. The application dated 11th December, 2017 principally seeks orders that the Honourable Court be pleased to order a stay of execution of the judgment/decree given by Honourable E. Wanjala dated 9th November, 2017 in the civil case No. 1258 of 2015 pending the hearing and determination of the Civil Appeal herein.
2. Secondly, the judgment entered on 9th November 2017 and all other consequential orders be stayed.
3. The application is premised on the grounds stated therein and is supported by the affidavit of Philomen Theuri, a Legal manager with the Applicant’s Insurer. It is stated that judgment was entered in the Lower Court against the Applicant in the sum of Ksh.1,300,000/=. The Applicant is dissatisfied with the said judgment and lodged the Appeal herein. It is stated that if the application herein is not allowed, the Appeal will be rendered nugatory. The Applicant is apprehensive that the Respondent may not be able to refund the decretal sum in the event that the Appeal is successful. The Applicant is willing to deposit security in the form of an insurance bond for the due performance of the decree. It is averred that the Appeal has high chances of success.
4. The application is opposed. It is stated in the replying affidavit that the deposit for an insurance bond as security is inadequate. The court was urged to order that the Applicant do pay 70% of the decretal sum to the Respondent and deposit the balance in a joint interest earning bank account of the respective counsels for the parties herein. It is stated that the Respondent is a person of means who is able to refund the decretal sum in the event that the Appeal is successful.
5. 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.”
6. In the case at hand, there are no allegations of delay. The application was filed timeously.
7. On whether the Applicants will suffer substantial loss, it is noteworthy that the Respondent has not given the details of her resources to the court to demonstrate that she is capable of refunding the decretal sum. 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.”
8. To balance the competing interests of both parties herein, I allow the application on condition that the Applicant do deposit the decretal sum in a joint interest earning bank account of the counsel for Applicant and the Respondent or in court within 30 days from the date hereof. Costs in cause.
Date, signed and delivered at Nairobi this 16th day of May, 2018
B. THURANIRA JADEN
JUDGE