[2011] KEHC 174 (KLR)
The court found that the application for stay of execution was made promptly after leave to appeal was granted, satisfying the requirement of absence of unreasonable delay. The court accepted that substantial loss could result to the applicants if the sum of Ksh. 870,000 was paid out and could not be recovered from...
Source-derived case information.
- Citation
- [2011] KEHC 174 (KLR)
- Parties
- Appellant: Kimaiyo Kiptanui & Peter G Munya T/A Kimaiyo & Munya Advocates; Respondent: Kenya Pipeline Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 637 of 2011
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted, conditional upon provision of security.
- Legal Topics
- Stay of Execution, Vicarious Liability, Professional Misconduct, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimaiyo Kiptanui & Peter G Munya T/A Kimaiyo & Munya Advocates
Appellant
Kenya Pipeline Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution pending appeal.
- 2 Whether substantial loss would result to the applicants if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the application for stay of execution was made promptly after leave to appeal was granted, satisfying the requirement of absence of unreasonable delay. The court accepted that substantial loss could result to the applicants if the sum of Ksh. 870,000 was paid out and could not be recovered from the associate. The court held that security for due performance was necessary and ordered that a bank guarantee for the full decretal sum be provided. Accordingly, the court exercised its discretion to grant a stay of execution pending appeal, conditional upon the provision of security by way of a bank guarantee within 14 days.
Court Disposition
Application for stay of execution granted, conditional upon provision of security.
Orders
- Stay of execution granted pending appeal.
- Applicants to provide security for Ksh. 870,000 by way of a bank guarantee within 14 days.
Full Case Text
Judgment text and source record
69 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 637 OF 2011
KIMAIYO KIPTANUI & PETER G MUNYA
T/A KIMAIYO & MUNYA ADVOCATES ............................................... APPELLANTS/APPLICANTS
VERSUS
KENYA PIPELINE CO. LTD ….……...……….............. RESPONDENTS/RESPONDENTS
(Being an appeal from the Judgment of Hon. A.K. Ndungu Esq, Senior Principal Magistrate on 30th September 2011 in Civil Case No. 9811 of 2006 at Milimani Commercial Courts at Nairobi)
RULING
(Application for Stay of Execution
9th December 2011)
I.BACKGROUND
1. One of the associates in the applicant’s law firm was found guilty of professional mis-conduct by the Disciplinary Committee Misc. Case No. 345/2007.
2. The clients who suffered loss, sued the firm in the subordinate courts. Upon hearing the parties, the Hon. Magistrate found that the law firm was vicariously liable for the omission or commission of the associate and on 30th September 2011 awarded Ksh. 870,000/= in damages.
3. The law firm did not appeal immediately but on 8th December 2011, an application Misc 945/11 was filed during the court vacation seeking orders for leave to appeal out of time. This was granted (Kimondo J) and an appeal filed on 13th December 2011.
4. It was by application 9th December 2011 filed on 13th December 2011 that the appellant/applicant/law firm partners prayed to have a stay of execution pending appeal, - the subject of this ruling.
IIAPPLICATION
9TH DECEMBER 2011
5. The applicant prays that there be a stay of execution. This is given at the court’s discretion. There was a likelihood of success in the intended appeal. The parties applicant are ready to abide by the orders of the court.
6. In reply, the respondents stated that they should not be kept from the fruits of their judgment. The sum awarded is capable of being refunded.
IIFINDINGS
7. The granting of orders for stay of execution, is indeed discretory upon the court. It would not normally be granted but the court may do so if it can establish that:
“…Substantial loss may result to the applicant unless the order is made and that the application was made without unreasonable delay.
b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
8. It is true that the application was filed immediately upon the filing of the appeal. The respondent argues the delay should be counted from the date of the judgment. This appeal was dealt with by the Hon. Judge who gave leave, if not, it be dealt with in the main appeal.
9. Substantive loss would be the loss of the sum awarded of
Ksh. 870,000/=. If paid, it may not be recovered from the associate. The respondent argues the respondent have funds to reimburse, if the case would not be successful TO them.
10. The issue of security amounts to, whether it be proved or not for the due performance. The court is of the opinion that security must indeed be provided for in this case.
11. The application is hereby granted. There be security provided for Ksh. 870,000/= by way of a bank guarantee to be filed within 14 days of today’s date. Liberty to apply.
12. The costs be in the appeal.
DATED THIS 20TH DAY OF DECEMBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)G.E Kariuki instructed by M/s Gacau Kariuki & Co Advocates for appellant/applicant original defendant
ii) P.K. Mbabu instructed by M/s P.K. Mbabu & Co Advocates for respondent respondent/ original plaintiff
Editorial Summary
1. Civil Appeal
2. Civil Procedure and Practice
3. Subject of Subordinate Court Case
CONTRACT
3. 1 Professional misconduct
Misc. Cause 345/2007,
Disciplinary Committee
3. 2 Law firm held vicously liable for acts
committed by associate (Ksh. 870,000)
3. 3 Law firm appeal case to High Court,
with leave granted
8th december 2011
Misc. 945/11)
(Kimondo J)
Vacation duty judge
3. 4 Application for stay of execution
9th December 2011.
Pending interparties hearing
pending appeal.
4. Application 9th December 2011
i) Stay of execution prayed for.
5. In opposition:
i) Delay inordinate
ii) No merits for application
6. Held:
Application granted
Security Ksh. 870,000/=
Bank guarantee
7. Case Law:
8. Advocates:
i)G.E Kariuki instructed by M/s Gacau Kariuki & Co Advocates for appellant/applicant original defendant
ii) P.K. Mbabu instructed by M/s P.K. Mbabu & Co Advocates for respondent respondent/ original plaintiff