[2017] KEHC 1480 (KLR)
The court found that the appellant had not demonstrated that it would suffer substantial loss if stay was not granted, given that the respondent is a well-known public company listed on the Nairobi Securities Exchange and is financially capable of refunding the decretal sum should the appeal succeed. The court...
Source-derived case information.
- Citation
- [2017] KEHC 1480 (KLR)
- Parties
- Appellant: Kenya Commercial Bank Limited; Respondent: Bamburi Cement Limited; Interested Party: Patrick Karithi Njeru & Felesta Kamori t/a Pafeka General Stores
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 195 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application for stay of execution dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appellate Jurisdiction, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Limited
Appellant
Bamburi Cement Limited
Respondent
Patrick Karithi Njeru & Felesta Kamori t/a Pafeka General Stores
Interested Party
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the respondent's financial standing justifies the requirement for security for the decretal sum.
- 3 Whether depositing the decretal sum would unjustly deny the respondent use of its funds.
Ratio Decidendi
The court found that the appellant had not demonstrated that it would suffer substantial loss if stay was not granted, given that the respondent is a well-known public company listed on the Nairobi Securities Exchange and is financially capable of refunding the decretal sum should the appeal succeed. The court further noted that the application for stay was filed timeously, but the respondent holds a valid judgment and the interest rate applied to the judgment has significantly increased the decretal sum. The court concluded that requiring the respondent to deposit the decretal sum would unjustly deprive it of the use of its funds, and that the appellant's concerns about recoverability...
Court Disposition
application for stay of execution dismissed
Orders
- The application for stay of execution is dismissed.
- Costs shall be in the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 195 OF 2017
KENYA COMMERCIAL BANK LIMITED...................APPELLANT
VERSUS
BAMBURI CEMENT LIMITED
AND
PATRICK KARITHI NJERU & FELESTA KAMORI
T/A PAFEKA GENERAL STORES.............INTERESTED PARTY
RULING
This is an application by the appellant by way of Notice of Motion dated 18th September, 2017 under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, seeking a stay of execution of the judgment of the lower court.
The appellant is apprehensive that the respondent shall proceed with execution, yet the appeal raises triable issues of law and fact and has overwhelming chances of success. If execution of the lower court judgment is not stayed, the appeal shall be rendered nugatory. The appellant does not know the financial standing of the respondent and believes it might not recover the decretal sum which now stands at about Ksh. 5,000,000/= if the appeal is allowed.
The appellant is ready to abide by any condition including the deposit of the decretal sum in court or in a joint interest earning account pending the hearing and determination of the appeal.
The application is opposed and a replying affidavit has been filed by the company secretary of the respondent. An earlier application for stay of execution, the respondent states, was dismissed by the lower court. It is also submitted that the respondent is a public company listed in the Nairobi Security Exchange, whose financial statements are publicly available and within the appellant’s knowledge.
It will amount to denial of the use of funds if the decretal sum is deposited as suggested by the appellant, and that suggestion is a confirmation that it is intended to deny the respondent of such use. Further, the respondent is in a financial position to refund the decretal sum should the intended appeal succeed.
I have considered rival positions of the parties herein. The application was filed timeously. The respondent holds a valid judgment. The judgment carries special rates of interests at commercial rate of 1. 5% per month from July 2003. In fact, it is that rate of interest that has escalated the figure to about Ksh. 5,000,000/= because the decretal sum at the time the lower court judgment was pronounced was about Ksh.1,200,000/=.
The appellant makes no commitment that if the decretal sum is deposited as suggested it will attract that interest. In fact it may be more beneficial for the appellant to meet the decretal sum at this stage rather than waiting for the determination of the appeal. I say so because, in the event the appeal is dismissed, the figure payable may be astronomical.
The court takes judicial notice that the respondent is indeed a public company known for production of cement, and listed in the Nairobi Security Exchange as correctly stated in reply to the application. I entertain no doubt that in the event the appeal succeeds the respondent shall be in a position to refund the amount so paid by the appellant. In view of the foregoing, this application must fail. It is accordingly dismissed. The costs shall be in the appeal.
Dated, signed and delivered at Nairobi this 14th Day of November, 2017
A.MBOGHOLI MSAGHA
JUDGE