[2004] KEHC 1262 (KLR)
The court found that the applicant had satisfied the requirements for stay pending appeal under Order 41 Rule 4 of the Civil Procedure Rules. The applicant deposited the entire decretal sum as security and filed the application without delay. The respondent failed to provide sufficient evidence of his financial...
Source-derived case information.
- Citation
- [2004] KEHC 1262 (KLR)
- Parties
- Appellant: Kenya Alliance Insurance Co. Ltd; Respondent: John Mutuku Musyimi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 473 of 2004
- Procedural Posture
- Civil Appeal / Application for Stay Pending Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Stay of Execution, Security for Decree, Substantial Loss, Burden of Proof
- 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
Kenya Alliance Insurance Co. Ltd
Appellant
John Mutuku Musyimi
Respondent
Procedural Posture
Civil Appeal / Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay pending appeal under Order 41 Rule 4 of the Civil Procedure Rules.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the respondent's financial status justifies the grant of stay.
Ratio Decidendi
The court found that the applicant had satisfied the requirements for stay pending appeal under Order 41 Rule 4 of the Civil Procedure Rules. The applicant deposited the entire decretal sum as security and filed the application without delay. The respondent failed to provide sufficient evidence of his financial capacity to refund the decretal sum if the appeal succeeded, despite being in a position to do so. The court held that the risk of substantial loss to the applicant was established, and the interests of both parties would be protected by maintaining the decretal sum in court pending the appeal's determination.
Court Disposition
application allowed with conditions
Orders
- The application dated 7th July, 2004 is allowed on condition that the decretal amount, having been paid in court, remains deposited pending final determination of the appeal.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 473 OF 2004
KENYA ALLIANCE INSURANCE CO. LTD ..………..… APPELLANT
VERSUS
JOHN MUTUKU MUSYIMI ……………...……………. RESPONDENT
RULING
This is an application for stay pending appeal made under Order 41 Rule 4 of the Civil Procedure Rules. The Appellant is challenging the lower court’s decree on the grounds that it never insured the Respondent, and is, therefore, not liable to compensate him.
For the applicant to succeed in an Order 41 Rule 4 application, he must demonstrate to the satisfaction of this Court that substantial loss will ensue if the Order is not granted; that the application has been filed without delay; and that he is willing and able to give such security as is ordered by the Court for the due performance of the decree. That is the plain reading of the Rule, and the onus is on the applicant to satisfy all the conditions through his deposition, and not through bold statements from the Bar.
The Applicant has deposited the entire decretal sum in Court as security. There is also no dispute that this application was filed without delay. The only issue is whether the Applicant has demonstrated that it will suffer substantial loss if this Order is not granted. I am satisfied that it has. The applicant fears that if the decretal sum is paid to the Respondent, it will not be able to recover the same in the event of a successful appeal.
The Applicant says that the Respondent is a man of straw based on its inquiries from the Respondent’s previous advocate. The Respondent, on the other hand, has averred that he has a business in Eastleigh from which he earns Kshs.80,000/= per month. He has not identified the nature of the business, or given details of its profit and loss statements, or annexed documents such as Income Tax Returns verifying its income. All this information is within his control, and could have been provided with ease. The applicant is not privy to that kind of information. It did what it best could to make inquiries. However, where information is in possession of the Respondent only, it is his duty to put forward the same, to disprove the applicant’s allegation that the Respondent is a man of straw.
This court has a duty to protect the interests of both the parties pending appeal. I shall, therefore, allow the application dated 7th July, 2004 on condition that the decretal amount, having now been paid in court, continues to remain in such deposit pending final determination of the appeal. Costs shall be in cause.
Dated and delivered at Nairobi this 6th day of October, 2004.
ALNASHIR VISRAM
JUDGE