[1997] KECA 270 (KLR)
The Court found that while the applicants had demonstrated an arguable appeal, they failed to satisfy the second requirement that the appeal would be rendered nugatory if a stay was not granted. The applicants conceded that the respondent would be able to repay the decretal amount if the appeal succeeded, and no...
Source-derived case information.
- Citation
- [1997] KECA 270 (KLR)
- Parties
- Applicant: Kensan Insurance Brokers Limited; Applicant: Jim Choge; Respondent: Kenindia Assurance Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 94 of 1997
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted on condition of security; no order as to costs.
- Legal Topics
- Stay of Execution, Ex Parte Judgment, Setting Aside Judgment, Security for Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kensan Insurance Brokers Limited
Applicant
Jim Choge
Applicant
Kenindia Assurance Company Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated an arguable appeal to justify a stay of execution.
- 2 Whether the intended appeal would be rendered nugatory if a stay is not granted.
- 3 Whether hardship or sympathy can be a basis for granting a stay of execution.
Ratio Decidendi
The Court found that while the applicants had demonstrated an arguable appeal, they failed to satisfy the second requirement that the appeal would be rendered nugatory if a stay was not granted. The applicants conceded that the respondent would be able to repay the decretal amount if the appeal succeeded, and no authority was cited to support the proposition that hardship or sympathy could justify a stay. However, since the respondent did not object to a stay being granted on condition that sufficient security was provided, the Court granted a conditional stay requiring the applicants to deposit the entire decretal amount in a joint account of the parties' advocates within thirty days,...
Court Disposition
Application for stay of execution granted on condition of security; no order as to costs.
Orders
- Applicants to deposit the whole decretal amount into a joint account of the parties' advocates with a reputable bank within thirty days, failing which the stay shall lapse.
- No order as to costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (Coram: Omolo, Akiwumi & Lakha, JJ.A.)
CIVIL APPLICATION NO. NAI. 94 OF 1997 (45/97UR) BETWEEN
KENSAN INSURANCE BROKERS LIMITED)
JIM CHOGE ).......................APPLICANTS
AND
KENINDIA ASSURANCE COMPANY LIMITED.....................RESPONDENT
RULING OF THE COURT:
This is an application by the unsuccessful defendants under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of the order of the superior court (Wambiliangah, J.) made on April 17, 1997 whereby he dismissed their application to set aside an ex parte judgment obtained against them by the respondent on March 7, 1997. By that decree the defence was struck out and judgment was entered in favour of the plaintiff as prayed in the plaint.
In entering judgment, as he did, for about K.Shs. 13 million for the respondent as prayed the learned judge was granting the very strong and summary remedy which he must only do in the clearest of cases and with extreme caution. This he did not do and we are persuaded by Mr. Omwella for the applicants that the intended appeal cannot be said to be frivolous.
But there is another requirement upon which we must be satisfied before a stay can be granted. It is that unless a stay is granted the intended appeal will be rendered nugatory. It was conceded by Mr. Omwella and, in our view properly, that he could not contend that the respondent would be unable to repay the decretal amount if the appeal succeeded. He conceded and, again, in our view properly, that he could not seriously contend that if stay was not granted the appeal would be rendered nugatory but urged that it would cause considerable hardship. That may be so but no decision was cited to show that sympathy and/or hardship can supply the basis that could, in the circumstances of this case, be considered to render an appeal nugatory.
All in all, while we are satisfied that the applicants have an arguable appeal we are not satisfied on the second requirement that unless a stay is granted the intended appeal will be rendered nugatory. Mr. Kasamani for the respondent, however, conceded that he would not object to a stay upon a sufficient security being furnished. On this basis we grant the application for stay on condition that the applicants shall deposit into a joint account of the parties' advocates the whole decretal amount with a Bank of repute within thirty (30) days hereof failing which the stay shall lapse. One final matter. In the preparation of the decree and its execution the respondent flouted the rules of procedure which this Court will not allow. As a mark of our disapproval of the respondent's flagrant breaches of the rules in this regard, we do not make any order for costs of this application.
Dated and delivered at Nairobi this 21st day of May, 1997.
R.S.C. OMOLO
.............
JUDGE OF APPEAL
A.M. AKIWUMI
..............
JUDGE OF APPEAL
A.A. LAKHA
..............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR