[2018] KEHC 5585 (KLR)
The court found that the application for stay of execution was made without undue delay and that the applicant, a public corporation, has the capacity to settle the decretal sum. The court determined that imposing conditions for stay was unnecessary given the applicant's financial standing and the absence of...
Source-derived case information.
- Citation
- [2018] KEHC 5585 (KLR)
- Parties
- Appellant: Kenya Wildlife Services; Respondent: Geofrey Kirimi Mwiti
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution granted as prayed.
- Judges
- SJ Chitembwe
- Legal Topics
- Stay of Execution, Road Traffic Accident, General Damages, Negligence, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Wildlife Services
Appellant
Geofrey Kirimi Mwiti
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the application for stay was made without undue delay.
- 3 Whether the applicant's capacity to settle the decretal sum negates the need for conditions for stay.
Ratio Decidendi
The court found that the application for stay of execution was made without undue delay and that the applicant, a public corporation, has the capacity to settle the decretal sum. The court determined that imposing conditions for stay was unnecessary given the applicant's financial standing and the absence of evidence suggesting inability to pay. The court concluded that the application was merited and granted the stay of execution as prayed, directing the applicant to file and serve the record of appeal within thirty days. Costs of the application were ordered to follow the outcome of the appeal.
Court Disposition
Application for stay of execution granted as prayed.
Orders
- Stay of execution of the judgment in Marsabit PMCC No.29 of 2015 granted pending appeal.
- Applicant to file and serve the record of appeal within thirty (30) days.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA
AT MARSABIT
CIVIL APPEAL NO.12 OF 2017
KENYA WILDLIFE SERVICES............APPELLANT
VERSUS
GEOFREY KIRIMI MWITI .............RESPONDENT
RULING
The application dated 13th December, 2017 is seeking an order of stay of execution of the judgement of the trial court delivered on 23rd November, 2017 in Marsabit PMCC No.29 of 2015. It is supported by the affidavit of Doreen Mutunga. The respondent filed a replying affidavit sworn on 22nd December, 2017.
Counsel for the applicant submit that the intended appeal has high chances of success. The case involves a road traffic accident and the amount awarded by the trial court is excessive. The respondent intends to execute and the applicant will suffer great damage and loss. The application has been made without undue delay. The applicant is willing to comply with any reasonable conditions imposed by this court.
Counsel for the respondent admit that the application has been made without undue delay. The judgment was delivered on 13. 12. 2017. The application was filed 20 days later on 23. 11. 2017. Counsel for the respondent maintains that the application lacks merit and should be dismissed. I do agree that the application was filed timeously.
The next issue involves the merits of the application. The respondent submit that the respondent has a constitutional and legitimate expectation to be compensated by the applicant. The issue involves negligence of the applicant. The respondent was the applicant’s employee. There is no proof that the respondent will not be able to refund the decretal sum if it is released to him. The applicant is ready to furnish a bank guarantee equivalent to a portion of the decretal sum but this is not agreeable to the respondent.
There is no doubt that the application was filed without undue delay. The trial court found the applicant 100% liable. Ksh.3. 5million was awarded as general damages. This is a substantial sum and the applicant is entitled to pursue the appeal.
The respondent is a public corporation which has been in existence for many years. The applicant’s capacity to settle the decretal sum is not in doubt. The appeal has already been filed. The proceedings have been typed and the appeal can be heard and determined within 90-120 days. I do find that it would be imprudent for this court to impose conditions on the applicant while granting the prayers for stay of execution. I am satisfied that the applicant is in a position to satisfy the decretal sum. The Courts impose conditions where the applicant’s status in relation to settling the decree is doubtful or may change and disadvantage the decree holder. That cannot be said of the applicant herein.
I do find that the application is merited and is hereby granted as prayed. The applicant to file a record of appeal and serve within thirty (30) days hereof. Costs of the application shall follow the outcome of the appeal.
Dated, Signed and Delivered at Marsabit this 8th day of March 2018
S. CHITEMBWE
JUDGE