[2008] KEHC 2995 (KLR)
The court found that neither party provided evidence regarding the respondent's financial position, and it is not for the court to assume inability to refund. The onus is on the applicant to demonstrate substantial loss, which was not sufficiently discharged. However, considering the willingness of the appellant to...
Source-derived case information.
- Citation
- [2008] KEHC 2995 (KLR)
- Parties
- Appellant: Lochab Brothers Limited; Respondent: Joseph Wekesa Wafula
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 131 of 2007
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted.
- Judges
- AI Tullu
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lochab Brothers Limited
Appellant
Joseph Wekesa Wafula
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated sufficient grounds for stay of execution pending appeal.
- 2 Whether the appellant will suffer substantial loss if the decretal sum is paid out before the appeal is heard.
- 3 What security, if any, should be provided for the due performance of the decree.
Ratio Decidendi
The court found that neither party provided evidence regarding the respondent's financial position, and it is not for the court to assume inability to refund. The onus is on the applicant to demonstrate substantial loss, which was not sufficiently discharged. However, considering the willingness of the appellant to provide security and the respondent's offer to accept part payment, the court exercised its discretion to balance the interests of both parties. The court ordered partial payment to the respondent and a bank guarantee for the balance as security, thereby granting a conditional stay of execution pending appeal.
Court Disposition
Conditional stay of execution granted.
Orders
- Appellant to pay and release Kshs. 150,000 to the respondent within 21 days.
- Appellant to issue a bank guarantee for the balance including costs in the sum of Kshs. 278,030 within 21 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Appeal 131 of 2007
LOCHAB BROTHERS LIMITED ……...……………………… APPELLANT
VERSUS
JOSEPH WEKESA WAFULA ……………..………………. RESPONDENT
JUDGEMENT
This is an application by the Appellant under Order 41, Rule 44 (1), (2) and (6) of the Civil Procedure Rules for an order of stay of execution of the Judgement of the Resident Magistrate in Eldoret in CMCC No. 144 of 2006 delivered on the 17th September, 2007.
In the said suit the trial Court awarded the Plaintiff a sum of Kshs. 481,500/= in general and special damages for injuries sustained by the Plaintiff in the course of performing his duties as an employee of the Defendant. From the said sum was deducted 20% on basis of contributory negligence leaving a balance of Kshs. 385,200/=.
The Applicant claims that it is likely to suffer substantial loss and damage in the event execution takes place. It says that the Appeal has good chances of success.
The Respondent says that he should be paid at least one half of the decretal sum pending the hearing of the appeal and the balance deposited in a joint interest earning account.
I have considered the application and the rival affidavits. I have also considered the submissions by counsel. None of the parties have placed any information or material as to the financial position of the Respondent. Counsel for the Respondent stated from the bar that the Respondent is a mechanic and not a man of straw.
The onus is on the applicant to demonstrate that it will suffer substantial loss if the awarded sum is paid out. It is not for the Court to assume that the Respondent will not be in a financial position to refund the decretal sum if the appeal is successful.
Be that as it may, there ought to be some reasonable information or material for the Court to reach a fair and reasonable finding. In this case there is no such evidence from either side. The Appellant is willing to provide security for the decretal sum while the Respondent has offered to accept one half of the amount pending the hearing of the appeal.
In the light of the foregoing and considering the issues raised in the Memorandum of Appeal, I do hereby order that Appellant pays and releases a sum of Kshs. 150,000/= to the Respondent and issues a bank guarantee for the balance including costs in the sum of Kshs. 278,030/= within the next 21 days.
Costs of the application shall be in the appeal.
DATED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF MARCH, 2008.
M. K. IBRAHIM
JUDGE
In the presence of:
Mr. Cheluget for the Respondent
Mr. Gichana for the Applicant/Appellant