[2024] KEHC 7076 (KLR)
The court found that the applicants failed to explain the delay in filing the appeal but noted that the respondent did not contest the applicants' assertion that they would be unable to refund the decretal sum if the appeal succeeded. The court held that the applicants had demonstrated the likelihood of suffering...
Source-derived case information.
- Citation
- [2024] KEHC 7076 (KLR)
- Parties
- Applicant: Silas Muthomi; Applicant: Mary Wanjiku; Respondent: Irene Karimi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E007 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Muthomi
Applicant
Mary Wanjiku
Applicant
Irene Karimi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for leave to appeal out of time.
- 2 Whether the applicants have met the conditions for grant of stay of execution pending appeal.
- 3 Whether adequate security for due performance has been offered.
Ratio Decidendi
The court found that the applicants failed to explain the delay in filing the appeal but noted that the respondent did not contest the applicants' assertion that they would be unable to refund the decretal sum if the appeal succeeded. The court held that the applicants had demonstrated the likelihood of suffering substantial loss if stay was not granted. However, the court also observed that the applicants had not yet deposited the required security. Balancing these factors, the court granted leave to appeal out of time and stay of execution, conditional upon the applicants depositing the total decretal sum with the court as security for due performance. The intended appeal must be filed...
Court Disposition
Application allowed with conditions.
Orders
- Leave is granted to appeal the judgment and decree in Meru SCC No E200 of 2023.
- An order of stay of execution of judgment and decree in Meru SCC No E200 of 2023 is granted pending the hearing and determination of the intended appeal, on condition that the applicants deposit the total decretal sum with the court as security for due performance of the judgment.
Full Case Text
Judgment text and source record
29 paragraphs
Muthomi & another v Karimi (Miscellaneous Civil Application E007 of 2024) [2024] KEHC 7076 (KLR) (6 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7076 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Civil Application E007 of 2024
TW Cherere, J
June 6, 2024
Between
Silas Muthomi
1st Applicant
Mary Wanjiku
2nd Applicant
and
Irene Karimi
Respondent
Ruling
1. On 21st September 2023, Judgment was entered in Meru SCC No E200 of 2023 for the Respondent as against the Applicant for the sum of Kshs 251,200/- plus costs and interest.
2. By application dated 15th January, 2024 and filed on 16th January, 2024, supported by an affidavit sworn by Jeremiah Mungania Maroo (Applicant) he seeks stay of execution of the judgment pending filing of an intended appeal on both quantum and liability and leave to appeal out of time. Applicant avers that his insurer is willing to offer a bank guarantee as security for due performance of the judgment.
3. Joelrum Mutisyia (Respondent) opposed the application vide a replying affidavit sworn on 25th March, 2024 on the grounds that the delay in filing the appeal has not been explained and substantial loss has not been demonstrated. In the event that application is allowed, Respondent prays that the total decretal sum deposited in an interest earning account in the name of both advocates.
4. I have considered the application in light of affidavits on record and the issue for determination is whether a case has been made for an order of leave to file an appeal out of time and stay of execution of judgment dated 17th October 2023 pending hearing and determination of the intended appeal.
5. Order 42 (6) of the Civil Procedure Rules provides that no order for stay of execution shall be made unless application has been made without unreasonable delay; substantial loss is demonstrated and security for the due performance of such decree or order is offered. (See Endmor Steel Millers Ltd v James Wakhulunya Makuto [2016] eKLR).
6. The impugned judgment was delivered on judgment on 17th October 2023, this application was filed on 17th January, 2024 exactly 3 months from the date of the impugned judgment.
7. Applicant does not explain the delay in filing the appeal and appears to have moved the court only after the Respondent filed a declaratory suit to enforce the judgment against Appellant’s insurer.
8. Concerning substantial loss, there is a myriad of cases among them Standard Assurance Co. Ltd v Alfred Mumea Komu [2008] eKLR where the Court stated-“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.”
9. Respondent has not responded to the Applicant’s contention that he is not in a position to refund the decretal sum in the event the appeal succeeds.
10. From the foregoing, I find that Applicant has thus demonstrated that he is likely to suffer substantial loss if an order of stay is not granted.
11. The record demonstrates that Applicant has to date not deposited the sum of Kshs 100,000/- as security for due performance of the judgment which he was ordered to deposit on 17th January, 2024.
12. From the foregoing analysis, the notice of motion dated 15th January, 2024 and filed on 16th January, 2024 is allowed in the following terms;1. Leave is granted to appeal the judgment and decree in Meru SCC No E200 of 2023 An order of stay of execution of judgment and decree in Meru SCC No E200 of 2023 is granted pending the hearing and determination of the intended appeal on condition that Applicant deposits the total decretal sum with the court as security for due performance of the judgment2. The intended appeal shall be filed in the next 45 days3. Costs shall be costs in the appeal
DELIVERED IN MERU THIS 06TH DAY of JUNE 2024T.W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/KinotiFor Applicant - Mr. Adagala for Kimondo & Gachoka & Co. AdvocatesFor Respondent - Mrs. Ntarangwi for Hiram Kirimi & Co. Advocates