[2013] KEHC 1171 (KLR)
The court found that the application for stay of execution had merit. Although the respondent claimed to be capable of repaying the decretal amount, there was insufficient evidence of his financial capacity beyond his assertion of being a businessman. The court also noted that the appeal was not frivolous, as the...
Source-derived case information.
- Citation
- [2013] KEHC 1171 (KLR)
- Parties
- Appellant: Kenneth Otieno; Appellant: James Ongera Obobe; Appellant: Hellen N. Gisiora; Respondent: Nziru Nganda
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 26 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted with conditions.
- Judges
- GO Shikwe
- Legal Topics
- Stay of Execution, Appeal Process, Security for Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenneth Otieno
Appellant
James Ongera Obobe
Appellant
Hellen N. Gisiora
Appellant
Nziru Nganda
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the appeal has high chances of success.
- 3 Whether the applicants will suffer irreparable loss if stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution had merit. Although the respondent claimed to be capable of repaying the decretal amount, there was insufficient evidence of his financial capacity beyond his assertion of being a businessman. The court also noted that the appeal was not frivolous, as the issue of whether the sum awarded was manifestly excessive required re-assessment. The application was brought without undue delay. Consequently, the court granted a stay of execution of the lower court's judgment, conditional upon the appellants depositing the entire decretal amount in an interest earning account in the joint names of both advocates within thirty days.
Court Disposition
Application for stay of execution granted with conditions.
Orders
- Stay of execution of the judgment of the lower court is granted.
- The appellants shall deposit the whole of the decretal amount in an interest earning account in the joint names of both advocates within thirty (30) days from the date of this ruling.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 26 OF 2013
KENNETH OTIENO
JAMES ONGERA OBOBE
HELLEN N. GISIORA …...........................................................APPELLANTS
VERSUS
NZIRU NGANDA ………..............…....................................…RESPONDENT
RULING
The Notice of Motion Application dated the 27th day of March, 2013 and brought under Section 3A of the Civil Procedure Act order 42 rules 6 order 51 rules 1 and 3 seeks for an order for stay of execution of the Judgment delivered on 7th February, 2013 pending the hearing and determination of the applicants appeal against the Judgment delivered on 7th February, 2013.
The grounds are that the appeal has high chances of success.
If the stay is not granted the appeal if successful would be rendered nugatory or the applicant would suffer irreparable loss and damage.
The Respondent in his replying affidavit depones that he obtained a valid and good Judgment.
Further its not true that he will not suffer prejudice if the application for stay is allowed as he has already incurred financial loss and trauma. That he is a businessman and therefore in a position to repay the Decretal amount if the appeal succeeds.
It is is submitted by his counsel that the principles in a case for stay of execution were held down in the authority of AMIN LADAK ALIAS AMIN JAFFER GULAM HUSSEIN -VS- ROTHMANS HOLDINGS LTD. & ANOR. HCCA No. 458OF 2000 eKLR where Waki, Judge held, the following ought to be determined
“(a) Whether the appeal has high chances of success.
(b) Whether the appellant shall suffer loss if the application is dismissed.
(c) Whether the application has been brought without delay”.
As to whether the appeal has high chances of success, it is submitted that the award of Ksh. 509,520/= in respect of injuries which were both multiple bone and tissue was reasonable going by the current Court awards for similar injuries on loss and prejudice if the application is dismissed. It is contended that the appeal has no high chances of success. It is the Respondent who continues to suffer. That he is capable and able to pay the amount awarded in the event the appeal succeeds.
Whether application has been brought without delay;
Judgment was delivered on 7th February, 2013. The application was filed on 4th April, 2013.
It is noted that the Respondent maintains that he is in a position to pay the whole of the decretal amount if the appeal succeeds. However, apart from stating that he is a businessman nothing else is indicative of his capacity to pay to allege or state that one is a businessman is not enough.
As to whether the appeal has high chances of success. It is argued that the sum awarded was manifestly excessive. I find that this is an issue which may require re-assessment. To that end therefore the appeal is not frivolous.
I do find that the application has merit. I will grant a stay of execution of the Judgment of the lower Court but on the condition that the Appellant do deposit the whole of the decretal amount in an interest earning account in the joint names of both Advocates within thirty (30) days from the date of this ruling.
Ruling delivered dated and signed this 14thday of November, 2013.
…................
M. MUYA
JUDGE
14TH NOVEMBER, 2013
In the presence of:-
Learner Counsel for the appellant Miss Andagi holding brief
Miss Kinyanjui
Learned Counsel for the Respondent Ajibo
Court clerk Musundi