[2021] KEHC 4848 (KLR)
The court found that the application for stay of execution was merited, given that similar appeals and applications arising from the same accident had already been granted stay on terms. To avoid conflicting orders and in the interest of justice, the court held that the same conditions should apply. The applicants...
Source-derived case information.
- Citation
- [2021] KEHC 4848 (KLR)
- Parties
- Appellant: Kensilver Express Limited; Appellant: Douglas Ntambura; Respondent: Judy Njoki Gatumo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application EO28 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Stay of Execution, Appeals Process, Decretal Sum Security, Motor Vehicle Accident Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kensilver Express Limited
Appellant
Douglas Ntambura
Appellant
Judy Njoki Gatumo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the applicants have demonstrated substantial loss if stay is not granted.
- 3 Whether security for the decretal sum should be ordered as a condition for stay.
Ratio Decidendi
The court found that the application for stay of execution was merited, given that similar appeals and applications arising from the same accident had already been granted stay on terms. To avoid conflicting orders and in the interest of justice, the court held that the same conditions should apply. The applicants were ordered to pay part of the decretal sum to the respondent and deposit the balance in a joint interest-earning account as security. Failure to comply would result in lapse of the stay. The court exercised its discretion under Order 42 Rule 6 of the Civil Procedure Rules, balancing the interests of both parties and ensuring the respondent's award is secured pending appeal.
Court Disposition
application allowed with conditions
Orders
- An order for stay of execution of the Judgment and Decree in MAUA CMCC NO.189 OF 2013 pending the filing, hearing and determination of the intended Appeal is hereby issued.
- The applicants shall within fourteen (14) days from the date of this order pay the respondent Ksh. 500,000.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
(CORAM: CHERERE-J)
CIVIL MISC. CASE NO. EO28 OF 2021
BETWEEN
KENSILVER EXPRESS LIMITED..................................1ST APPELLANT/APPLICANT
DOUGLAS NTAMBURA..............................................2ND APPELLANT/APPLICANT
AND
JUDY NJOKI GATUMO........................................................................RESPONDENT
RULING
Background
1) This appeal arises from a judgment in respect of an accident involving the 1st Appellant’s motor vehicle KAW 097K that was involved in an accident on 06th November, 2010.
2) On the 08th February, 2021, the court in MAUA CMCC NO.189 OF 2013 entered judgment in favour of the Respondent as against the Appellants/ Applicants jointly and severally for Kshs. 5,500,000/-.
3) By a notice of motion dated 22nd February, 2021 and filed on 24th February, 2021, Applicant seeks orders for:
1) This Honourable Court Stay of execution of judgment inMAUA CMCCNO.189 OF 2013pending the hearing and determination of the appeal
2) Costs be provided for
4) The notice of motion is premised on grounds among others that the Applicant is aggrieved by the judgment of the trial court and has filed an appeal which has overwhelming chances of success.
5) The application is also supported by an undated affidavit sworn by David Lucas Onyengo, the Applicant’s Supervisor who reiterates the grounds on the face of the application.
6) The application is opposed on the basis of a replying affidavit sworn by the Respondent on 06th May, 2021. She contends that the Applicants have not demonstrated substantial loss in the event that the stay orders are not granted.
Analysis and Determination
7) I have considered the application in light of affidavits on record and annexures thereto. It is apparent that this appeal and Civil Appeal 20, 19 & 18 of 2021 (Consolidated)arise from judgments for damages arising out of the same accident.
8) The court has already made a decision on applications for stay of execution in Civil Appeal 20, 19 & 18 of 2021 (Consolidated). To avoid the risk of coordinate courts granting conflicting orders, this court finds that it would be in the interest of justice that similar orders as made inCivil Appeal 20, 19 & 18 of 2021 (Consolidated) do apply to this application.
9) Consequently, the notice of motion dated 22nd February, 2021 and filed on 24th February, 2021 is allowed in the following terms:
i) An order for stay of execution of the Judgment and Decree inMAUA CMCC NO.189 OF 2013 pending the filing, hearing and determination of the intended Appeal is hereby issued.
iiThe Applicants shall with fourteen (14) days from the date of this order pay the Plaintiff/Respondent a total of Ksh. 500,000/- (Kenya Shillings Five hundred thousand).
iii)Within 60 days from the date hereof, the Applicants shall deposit the balance of the decretal sum being Ksh. 5,000,000/=, in a joint interest earning account in names of the respective Advocates for the parties.
iv)In default of compliance with orders ii) and iii) above, the orders for stay shall lapse.
v) The costs of the applications shall abide the outcome of the Appeal.
DATED IN MERU THIS 29th DAY OF July 2021
T.W. CHERERE
JUDGE
Court Assistant -Morris Kinoti
For Applicants - Ms. Aketch instructed by Vivian Loice Aketch & Co. Advocates
For Respondent - N/A for Michael Ngunjiri & Co. Advocates