[2015] KEHC 4777 (KLR)
The court found that since the appellants did not demonstrate any prejudice in providing security and had expressed willingness to do so, the appropriate order was for the decretal sum in each appeal to be deposited in an interest earning joint account in the names of the advocates for the parties pending the...
Source-derived case information.
- Citation
- [2015] KEHC 4777 (KLR)
- Parties
- Appellant: Kenjap Motors Limited; Appellant: David Mburu; Respondent: Geoffrey Kabiru Ndunda; Respondent: Hellen Mbinya Munyoli; Respondent: Shadrack Mutua Mutisya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24,25 & 26 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition of security; appellants to pay auctioneer's fees.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Security for Due Performance, Motor Vehicle Accident Liability, Damages Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenjap Motors Limited
Appellant
David Mburu
Appellant
Geoffrey Kabiru Ndunda
Respondent
Hellen Mbinya Munyoli
Respondent
Shadrack Mutua Mutisya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution pending appeal.
- 2 What amount and form of security should be provided by the appellants as a condition for stay.
- 3 Who should bear the costs of the auctioneer's fees incurred prior to the stay application.
Ratio Decidendi
The court found that since the appellants did not demonstrate any prejudice in providing security and had expressed willingness to do so, the appropriate order was for the decretal sum in each appeal to be deposited in an interest earning joint account in the names of the advocates for the parties pending the hearing and determination of the appeals. The court further held that the appellants should bear the auctioneer's fees, as their delay in seeking stay after judgment led to the incurrence of those costs. The orders were made by consent of the parties as to the provision of security, with the court determining the quantum and form of security and responsibility for auctioneer's fees.
Court Disposition
Application for stay of execution pending appeal allowed on condition of security; appellants to pay auctioneer's fees.
Orders
- The decretal sum in respect of each appeal shall be deposited in an interest earning account in the joint names of the advocates pending appeal.
- The appellants shall pay the auctioneer's fees.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
AT THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL SUIT NO. 24 OF 2015
KENJAP MOTORS LIMITED.............................................1ST APPELLANT
DAVID MBURU…............................................................2ND APPELLANT
VERSUS
GEOFFREY KABIRU NDUNDA........................................................................RESPONDENT
AND
REPUBLIC OF KENYA
AT THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL SUIT NO. 25 OF 2015
KENJAP MOTORS LIMITED..............................................1ST APPELLANT
DAVID MBURU….............................................................2ND APPELLANT
VERSUS
HELLEN MBINYA MUNYOLI..........................................................................RESPONDENT
AND
REPUBLIC OF KENYA
AT THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL SUIT NO. 26 OF 2015
KENJAP MOTORS LIMITED..................................................1ST APPELLANT
DAVID MBURU….................................................................2ND APPELLANT
VERSUS
SHADRACK MUTUA MUTISYA...............................................................................RESPONDENT
RULING ON NOTICE OF MOTION DATED 17th APRIL 2015.
1. An appeal has been filed by the appellants in the aforementioned appeals against the judgment of the lower court delivered on 4th February 2015. All the respondent’s claims before the lower court were for damages for injuries suffered in motor vehicle accident which was being driven by the 2nd appellant while driving a motor vehicle registered in the name of the 1st appellant. Judgment was entered in favour of all the respondents by the magistrate's court.
2. The appellants were unsuccessful in their application for stay of execution pending appeal filed before the lower court. They have now filed another application for stay pending their appeals before this court on the three files titled above all dated 17th April 2015. These are the applications under consideration and this Ruling relates to all of them.
3. When the applications came for hearing the learned counsels recorded consent that the appellants do provide security as a condition for stay pending appeal and that the court do determine the amount of such security, and that the court do make an order on the payment of the auctioneers fees. This Ruling addresses that consent.
4. The appellants failed to avail to this court the lower court's decrees. It therefore is not clear the amount of the judgments of the lower court. One can only gather that information from the auctioneer's proclamations attached to the applications. In the case of HCCA No. 24 of 2015 the amount is reflected in the proclamation as KSH 7761,393. 80; and HCCA NO.25 of 2015 the amount is KSH 786,643. 80; and HCCA No. 26 of 2015 is reflecte4d as 761,393. 80.
5. The appellants failed to submit on whether they would suffer any prejudice if they were ordered to provide the amount decreed by the lower court as security. Indeed the appellants deponed as follows in their affidavit in support of the applications;-
“That I verily believe that I have a strong and meritorious appeal herein with very high chances of success. That the appellants is ( sic) willing to give security for the due performance of the decreed herein as shall be directed by this honourable court pending the hearing and final determination of the appeal.”
6. In view of the above positions the order that commends itself to me and shall be the order of this court, is that the decretal sum in respect of each appeal be deposited in an interest earning account in the joint names of the advocate therein pending appeal.
7. In respect of the auctioneer's fees the order of the court is that the appellants shall pay the same. The basis of making that order is that although judgment was entered in favour of the respondents against the appellants in February 2015, the appellants did not seek stay pending appeal until April 2015. They must therefore bear the consequences of their indolence.
It is so ordered.
MARY KASANGO
JUDGE
DATED AND DELIVERED AT MOMBAS THIS 28TH DAY OF MAY 2015.
28th May 2015
Coram
Before Hon. Justice Mary Kasango
C/Assistance – Kavuku
Present:
For Appellants
For Respondent
Court Ruling delivered in their presence/absence in open court.
MARY KASANGO
JUDGE