[2023] KEHC 24680 (KLR)
The court found that the appellants satisfied the requirements for stay of execution pending appeal: the application was made without delay, substantial loss would occur if execution proceeded and the respondent was unable to refund the decretal sum, and the appellants offered reasonable security by depositing...
Source-derived case information.
- Citation
- [2023] KEHC 24680 (KLR)
- Parties
- Appellant: Faith Makena; Appellant: Lyntons Pharmacy Limited; Appellant: Farmers Centre Limited; Respondent: Lydia Ntinyari
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E156 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on conditions.
- Judges
- EM Muriithi
- Legal Topics
- Stay of Execution, Security for Judgment, Personal Injury Awards, Insurance Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Faith Makena
Appellant
Lyntons Pharmacy Limited
Appellant
Farmers Centre Limited
Appellant
Lydia Ntinyari
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules.
- 2 Whether the security offered by the appellants is sufficient in the circumstances of the case.
- 3 Whether the respondent's ability to refund the decretal sum if the appeal succeeds has been demonstrated.
Ratio Decidendi
The court found that the appellants satisfied the requirements for stay of execution pending appeal: the application was made without delay, substantial loss would occur if execution proceeded and the respondent was unable to refund the decretal sum, and the appellants offered reasonable security by depositing Ksh.3,000,000, being the statutory limit recoverable from the insurance company. The court held that security for the full decretal sum was not necessary in the circumstances, as the insurance company is only liable up to Ksh.3,000,000, with the balance recoverable from the insured. The respondent did not provide evidence of ability to refund the decretal sum if the appeal...
Court Disposition
Application for stay of execution pending appeal allowed on conditions.
Orders
- The appellants shall deposit into a joint interest earning account in the names of the counsel for the parties the sum of Ksh.3,000,000 within 14 days.
- The appellants shall file the necessary record of appeal within thirty (30) days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
Makena & 2 others v Ntinyari (Civil Appeal E156 of 2023) [2023] KEHC 24680 (KLR) (30 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24680 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E156 of 2023
EM Muriithi, J
October 30, 2023
Between
Faith Makena
1st Appellant
Lyntons Pharmacy Limited
2nd Appellant
Farmers Centre Limited
3rd Appellant
and
Lydia Ntinyari
Respondent
(Appeal from he judgment and decree of the Hon. M.A. Odhiambo, SRM, delivered on 31/8/2023 in Meru CMCCC No. 150 of 2020)
Ruling
1. The applicant seeks stay of execution pending hearing and determination of the appeal from the judgment of the trial court delivered on 31/8/2023 in a personal injury claim against the appellant and 2 others in Meru CMCCC No. 150 of 2020 where liability was apportioned at 100% against the defendants, now appellants, arising in a traffic accident. It is noted at the outset that the application dated 26/9/2023 for stay of execution was filed without delay before expiry of the 30-day stay granted by the trial court.
2. The Judgment against the appellant was sum is Ksh. 5,863,294 together with costs and interst at court rates. The applicants are ready to deposit into a joint interest earning account in the names of the counsel for the parties the sum of Ksh.3,000,000/- the extent of the statutory obligation of an insurance company (Britam Insurance) under section 10 of the Insurance (Motor Vehicles Third Party Risks)Insurance Act cap. 405. The Respondent’s replying affidavit queries why the applicant does not talk of the balance of Ksh.2,8 million of the decretal amount plus costs in the primary suit.
3. Despite express averment that “should execution issue and the sum of Ksh.3,000,000/- be paid the respondent will not be in a position to refund this sum in the event the likely appeal succeeds” the Respondent does not rebut this allegation with any cogent evidence. The court accepts that substantial loss would in the event occur.
4. Of course, the appellants are liable to the full extent of the decretal sum, but the security required by Order 42 rule 6 of the Civil Procedure Rules need not be equal to the full amount of the judgment. While the respondent is entitled to recover for the defendant and their insurance, the present statutory limit recoverable from the Insurance is Ksh.3Million, the balance being recoverable from the insured.
5. A deposit of the sum recoverable from the insurance in this case is sufficient security for purposes of the stay of execution pending appeal in the suit where the appeal has been preferred against both the liability and apportionment as well as the quantum of the award, and the not having demonstrated ability or means to reimburse the applicants should the appeal be successful and execution carried out in the meantime. The court does not see the need to provided security for the full amount of the judgment in this case where part of it is recoverable from the insurance and the other part by the insured, in which case, there may be need to order that the security be provided therefore from the two persons.
6. While the respondent may require some money for the future medical expenses awarded by the trial court at Ksh.3,000,000/-, the fact of lack of evidence of ability to refund and the challenge on liability and apportionment as well as the quantum dissuades the court from making an order, as requested by the respondent for her enjoyment of the fruits of the judgment, by partial payment of the decretal sum to her.
7. The court has noted that the proceedings and judgment of the trial court are typed and certified, and it should take the shortest time to prepare and file the Record of Appeal.
Orders 8. Accordingly, for the reasons set out above, the Court does allow the application dated 26/9/2023 for stay of execution pending appeal on conditions that –a.the appellants shall deposit into a joint interest earning account in the names of the Counsel for the parties the sum of Ksh.3,000,000/- within 14 days; andb.the appellant shall file the necessary Record of Appeal within thirty (30) days from today.
9. Directions for purposes of hearing of the appeal shall be taken on 11/12/2023. Order accordingly.
DATED AND DELIVERED ON THIS 30TH DAY OF OCTOBER, 2023. EDWARD M. MURIITHI..................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARAppearances:M/S J. M. Mwangi & Co. Advocates for the Appellants.M/S Vivian Loice Aketch & Co. Advocates for the Respondent.