[2022] KEHC 15814 (KLR)
The court found that the appellant filed the appeal within the prescribed time and overruled the preliminary objection. On the substantive application for stay, the court held that the appellant had demonstrated the risk of substantial loss if execution proceeded and the appeal succeeded, particularly given the...
Source-derived case information.
- Citation
- [2022] KEHC 15814 (KLR)
- Parties
- Appellant: Ahamed Mohamed Abdi Mahad; Respondent: Danis Bundi Kaberia
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E145 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahamed Mohamed Abdi Mahad
Appellant
Danis Bundi Kaberia
Respondent
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 under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether substantial loss will result to the appellant if stay is not granted.
- 3 What security should be provided for the due performance of the decree.
Ratio Decidendi
The court found that the appellant filed the appeal within the prescribed time and overruled the preliminary objection. On the substantive application for stay, the court held that the appellant had demonstrated the risk of substantial loss if execution proceeded and the appeal succeeded, particularly given the concern about the respondent's ability to refund the decretal sum. The court balanced the right of the respondent to enjoy the fruits of judgment with the appellant's right to have the appeal heard on merit. Accordingly, the court granted a conditional stay of execution, requiring the appellant to pay part of the decretal sum to the respondent and deposit the balance in a joint...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- There shall be a stay of execution of judgment in Maua CMCC No E223 of 2021 pending the hearing and determination of the intended appeal on condition that the appellant pays KES 500,000 to the respondent within 14 days.
- The balance of the decretal sum shall be deposited into an interest earning account in the names of both advocates within 30 days.
Full Case Text
Judgment text and source record
27 paragraphs
Mahad v Kaberia (Civil Appeal E145 of 2022) [2022] KEHC 15814 (KLR) (1 December 2022) (Ruling)
Neutral citation: [2022] KEHC 15814 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E145 of 2022
TW Cherere, J
December 1, 2022
Between
Ahamed Mohamed Abdi Mahad
Appellant
and
Danis Bundi Kaberia
Respondent
Ruling
1. On September 16, 2022, the court entered judgment in Tigania PMCC No 68 of 2020 in favour of the respondent as against the appellant for KES 1,056,000/- less 10% agreed contribution, costs and interest.
2. By a notice of motion dated and filed on October 17, 2022, appellant seeks orders for:1. Stay of execution of judgment and decree in Tigania PMCC No 68 of2020 pending the hearing and determination of this appeal
3. The notice of motion is premised on grounds among others that the appellant is aggrieved by the inordinately high damages awarded to the respondent and has filed this appeal and is likely to suffer substantial loss if the respondent executes the judgment.
4. The application is also supported by an affidavit sworn on October 17, 2022 by Ann Kimani, advocate for the appellant in which she reiterates the grounds on the face of the application.
5. In opposing the application, respondent filed an affidavit sworn on November 3, 2022 in which he avers that this application is meant to delay the respondent from enjoying the fruits of the judgment. It is proposed for the respondent that in the event the application is granted, the total decretal sum should be deposited in court.
Analysis and determination 6. I have considered that appellant paid for the filing of the appeal on October 17, 2022 which was the last day of filing the appeal. I therefore find that the appeal was filed within time and overrule the preliminary objection.
7. I have considered the application in light of affidavits on record the issue for determination is whether there ought to be stay of execution of judgment in Tigania PMCC No 68 of 2020 pending the hearing and determination of the appeal
8. Concerning stay of execution, order 42 (6) of the Civil Procedure Rules provides:(2)2) No order for stay of execution shall be made under sub rule(1)Unless—a.The court is satisfied that substantial loss may result to the applicant unless the order is madeb.That the application has been made without unreasonable delay; andc.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.
9. Substantial loss, in its various forms is the corner stone of best jurisdictions for granting a stay. That is what has to be presented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money. In ABN Amro Bank NV v Le Monde Foods Ltd Civil Application No Nairobi 15 of 2002 held that:'Each party bears a specific burden regarding proof of substantial loss in a case such as before us. So all an applicant in the position of the bank (appellant) can reasonably be expected to do is to swear, upon reasonable grounds, that the respondent will not be in a position to refund the decretal sum if it were paid over to him and the pending appeal was to succeed. In those circumstances, the legal burden still remains on the applicant but the evidential burden would then have shifted to the respondent to show that he would be in a position to refund the decretal sum if it is paid out to him and the pending appeal were to succeed. This evidential burden would be very easy for a respondent to discharge. He can simply show what assets he has – such as land, cash in the bank and so on.
10. Applicant contends that it case that it is likely to suffer substantial loss if the respondent executes since it is unlikely to recover the decretal sum from the respondent.
11. The record reveals that there is consent judgment between the parties at 80:20% in favour of the respondent dated June 30, 2020. Whereas the respondent has a right to enjoy the fruits of its judgment, the applicant on the other hand has a right to have its appeal heard on merit.
12. Further to the orders issued on November 1, 2022, it is hereby ordered:1. There shall be a stay of execution of judgment in Maua CMCC No E223 of 2021 pending the hearing and determination of the intended appeal on condition that:a.Appellant/applicant shall pay to the respondent KES 500,000/- within 14 days from today’s dateb.The balance shall be deposited into an interest earning account in the names of both advocates within 30 days from todayc.Appellant/applicant files and serves the record of appeal not later than 45 days’ from today’s date2. Mention on February 14, 2023 to confirm compliance and for orders concerning the hearing of the appeal3. Costs shall abide the outcome of the intended appeal
DATED IN MERU THIS 01ST DAY OF DECEMBER 2022TW CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellant/Applicant - Mr Muia for JK Kibicho & Co AdvocatesFor Respondent - Mr Kaberia for Nkunja & Co Advocates