[2011] KEHC 3562 (KLR)
The court found that the applicant had demonstrated a real risk of substantial loss if the decretal sum was paid to the respondent, who had not shown capacity to refund the amount should the appeal succeed. The respondent failed to discharge the evidential burden to prove ability to restitute. The application was...
Source-derived case information.
- Citation
- [2011] KEHC 3562 (KLR)
- Parties
- Appellant: Savanna International Limited; Respondent: Dennis Wekesa Nyongesa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 199 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- SP Ouko
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Substantial Loss, Timeliness of Application, Burden of Proof on Restitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Savanna International Limited
Appellant
Dennis Wekesa Nyongesa
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss may result unless stay of execution is granted.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether the applicant is willing to provide security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant had demonstrated a real risk of substantial loss if the decretal sum was paid to the respondent, who had not shown capacity to refund the amount should the appeal succeed. The respondent failed to discharge the evidential burden to prove ability to restitute. The application was made promptly, and the applicant offered security. The court therefore granted a temporary stay of execution on condition that the decretal sum be deposited in a joint interest-earning account in the names of both parties' counsel within 21 days, failing which execution would proceed.
Court Disposition
application for stay of execution allowed with conditions
Orders
- Temporary stay of execution granted pending hearing and determination of the appeal.
- Decretal sum to be deposited in an interest-earning account in the names of counsel for both parties within 21 days.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO.199 OF 2010
SAVANNA INTERNATIONAL
LIMITED………………………... APPLICANT/APPELLANT
VERSUS
DENNIS WEKESA NYONGESA…….....…….RESPONDENT
RULING
The respondent in this application was awarded by the court below Kshs.1. 3m in general damages for the injuries sustained by him in the course of his employment with the applicant.
The applicant was aggrieved by the award and has preferred this appeal. In the mean time he has brought the instant application for stay of execution arguing, among other grounds that the appeal has a high chance of success; that the applicant will suffer irreparable loss should execution proceed as the respondent has no known means to refund the decretal sum; and that the applicant is ready to provide appropriate security.
The respondent on his part has deposed that this appeal and application are intended to delay the respondent’s realization of the fruits of the judgment made in his favour by the lower court.
I must point out that an application for stay of execution under either order 41 rule 4of the revoked Civil Procedure Rules or Order 42 rule 6 of the 2010 Civil Procedure Rulesdoes not require such elaborate depositions as was made in the affidavits in this application. For instance, the applicant is relying on a total of 37 grounds while the respondent relies on 30. The grounds are largely on the merit or lack of merit of the appeal.
The jurisdiction of this court in matters of stay of execution is confined to the following consideration:
i)the court must be satisfied that substantial loss may result to the applicant unless the order of stay of execution is made and that;
ii)the application for stay of execution has been made without unreasonable delay and
iii)that the applicant is ready to provide security as may be ordered.
The applicant has deposed that the sum of 1. 3m if paid over to the respondent may never be recovered should the appeal succeed. This is the loss that must be avoided. The respondent has not rebutted the claim that he is not capable of refunding the decretal sum. It is now settled that where the applicant raises doubt over the respondent’s ability to restitute, the evidential burden is shifted to the respondent to demonstrate that indeed he has the means to restitute if called upon. The respondent has failed to discharge this burden confirming the applicant’s fears.
This application was brought within one month of the lower court’s judgment. There has been no delay. The applicant has also offered to give security as may be required.
For these reasons, this application succeeds. An order of a temporary stay of execution in terms of paragraph 3 of the application is granted pending the hearing and determination of this appeal subject to the following conditions:
i)the decretal sum be deposited in an interest earning account in a reputable bank in the names of counsel for both parties within twenty one (21) days
ii)execution shall issue without further orders should the applicant fail to comply with i) above
Costs will be costs in the appeal.
Dated, Signed and Delivered at Nakuru this 3rd day of March, 2011.
W. OUKO
JUDGE