[2020] KEHC 8528 (KLR)
The court found that the applicant failed to demonstrate that it would suffer substantial or irreparable loss if the stay was not granted, as the respondent had provided evidence of his financial capacity to refund the decretal sum in the event the appeal succeeded. The respondent's employment status and business...
Source-derived case information.
- Citation
- [2020] KEHC 8528 (KLR)
- Parties
- Applicant: Monarch Insurance Company Limited; Respondent: Geoffrey Githinji Ithai
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- RB Ngetich
- Legal Topics
- Stay of Execution, Appeals Process, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monarch Insurance Company Limited
Applicant
Geoffrey Githinji Ithai
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the appeal was filed within the stipulated time or with leave of court.
- 3 Whether the respondent's financial position justifies the grant of stay.
Ratio Decidendi
The court found that the applicant failed to demonstrate that it would suffer substantial or irreparable loss if the stay was not granted, as the respondent had provided evidence of his financial capacity to refund the decretal sum in the event the appeal succeeded. The respondent's employment status and business interests were sufficient to rebut the applicant's claim of unknown means. Additionally, the court noted the appeal was filed out of time without leave, but since it had not been expunged from the record, the court refrained from making a conclusive finding on that issue. Ultimately, the applicant did not satisfy the mandatory conditions for grant of stay of execution pending...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution pending appeal is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO.98 OF 2019
MONARCH INSURANCECOMPANY LIMITED....PLAINTIFF/APPLICANT
-VERSUS-
GEOFFREY GITHINJI ITHAI..............................DEFENDANT/RESPONDENT
RULING
1. This is a ruling on application dated 24th June 2019. It seeks stay of execution of judgment delivered on 8th May 2019 in CMCC No.42 of 2016.
2. Grounds on the face of the application are that, the applicant being aggrieved by the said judgment has lodged an appeal; that the appeal has high chances of success and has been brought expeditiously; that the respondent’s financial position is unknown and the respondent is likely to suffer irreparable loss as the applicant will not be able to recover the amount if appeal is successful.
3. The applicant aver that it is ready to abide by conditions that the court may order.
4. In response, the respondent filed replying affidavit dated 11th July 2019 sworn by the defendant. He averred that the applicant has failed to meet the three condition for grant of stay pending appeal which are as follows:-
i. The court is satisfied that substantial loss may result to the applicant unless the order is made.
ii. That the application has been made without unreasonable delay.
iii. Security as the court orders for due performance of such decree as may ultimately be binding on him has been given by the applicant.
5. He averred that the appeal was filed one month after the decree was made by the court and that the applicant never sought extension of time to file appeal rendering the appeal incompetent and stay cannot be granted on the basis of incompetent appeal.
6. Respondent further aver that this application was filed after one and half months after issuance of decree and that it was prompted by his advocate who sought compliance of the decree; that the applicant has not therefore fulfilled the second condition of filing application without unreasonable delay.
7. Respondent further averred that he is likely to suffer substantial loss. He also averred that the decree herein arose from indemnity claim and that the court ordered that he be returned to position he was in before the accident; that he was asked to give him the vehicle he had before the accident and its value was kshs 1,200,000 before the accident and in the event the appeal is successful nothing will stop the applicant from repossessing the vehicle.
8. In response to averment that his economic status is unknown, he averred that the allegation is malicious as he disclosed that he is a public servant in position of Deputy County Commissioner in Ruiru County and is also a Director of Menengai Ostrich Resort and Campsite a limited liability company which owns exclusive tourist resort.
9. He averred that in the event that this court finds this application meritorious, the applicant be ordered to deposit kshs 1,200,000 being value of the vehicle and kshs 95,000 being nominal costs for the case.
ANALYSIS AND DETERMINATION
10. I have considered averments in affidavits filed and submissions by the parties. I concur with counsel for respondent that, for grant of stay pending appeal to be issued three conditions set out hereunder must be met:-
i. The court is satisfied that substantial loss may result to the applicant unless the order is made
ii. That the application has been made without unreasonable delay
iii. Security as the court orders for due performance of such decree as may ultimately be binding on him has been given by the applicant
11. On appeal being filed out of time, I note that it was filed on 10th June 2019 two days after time allowed for filing appeal though it’s dated 7th June 2019. The applicant has not explained why he never sought leave to file appeal out of time having filed it out of the stipulated period for filing appeal. I cannot however say much because it has not been expunged from record.
12. As to whether the applicant is likely to suffer irreparable damage, the respondent has demonstrated that he is in a position to refund amount paid if appeal is successful. He has attached a pay slip and certificate incorporation document of Menengai Ostrich Resort and Camps Limited. My view is that, the applicant has not demonstrated that the respondent is a person of unknown means. On the contrary the respondent has been able to demonstrate that he is in salaried employment and is also in business and that he will be able to refund the applicant the decretal amount in the event that the appeal succeed.
13. From the foregoing, the applicant has failed to demonstrate that he is likely to suffer irreparable damage if the appeal is successful. I see no merit in this application.
14. FINAL ORDERS
1) Application is dismissed with costs to the respondent.
Rulingdated, signed and delivered at Nakuru this 30th day of January, 2020
......................................
RACHEL NGETICH
JUDGE
IN THE PRESENCE OF:-
Schola/Jenifer - Court Assistant
Ms. Kiberenge holding brief for Muiya Counsel for applicant
Ms. Sambu holding for Githui Counsel for respondent