[2016] KEHC 5524 (KLR)
The court found that the applicant failed to provide sufficient evidence of her inability to raise the monetary security ordered by the lower court. Despite her claim of financial incapacity due to hospitalization, the respondent provided evidence of the applicant's substantial assets, including motor vehicles, bank...
Source-derived case information.
- Citation
- [2016] KEHC 5524 (KLR)
- Parties
- Appellant: Susan Njeri Gitau; Respondent: David Huria Kiberenge
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 146 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Substitution of Security Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- JK Mulwa
- Legal Topics
- Security for Costs, Stay of Execution, Substitution of Security, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Njeri Gitau
Appellant
David Huria Kiberenge
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Substitution of Security Pending Appeal
Legal Issues
- 1 Whether the applicant should be allowed to deposit land title as security pending appeal in place of monetary security ordered by the lower court.
- 2 Whether the applicant has demonstrated inability to raise the monetary security required by the court.
- 3 Whether offering land as security is sufficient and practical in the circumstances.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence of her inability to raise the monetary security ordered by the lower court. Despite her claim of financial incapacity due to hospitalization, the respondent provided evidence of the applicant's substantial assets, including motor vehicles, bank accounts, and shares. The court noted that offering land as security, while permissible, may not be practical due to the lengthy and complex process of realizing such security in the event of an unsuccessful appeal. The applicant did not provide bank statements or other proof of lack of funds. The court concluded that the application was made in bad faith to delay the appeal...
Court Disposition
application dismissed with costs
Orders
- The application to substitute monetary security with land title as security pending appeal is dismissed.
- The applicant shall bear the costs of this application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NUMBER 146 OF 2014
SUSAN NJERI GITAU.............................................APPELLANT/APPLICANT
VERSUS
DAVID HURIA KIBERENGE.....................................................RESPONDENT
(An appeal against the Ruling of Hon. Amwayi – Principal Magistrate delivered on 8th October, 2014 in NAKURU CMCC NO. 1129 of 2010)
RULING
1. By its Notice of Motion application dated 17th February 2015, the Appellant, Susan Njeri Gatau seeks leave of court to be allowed to deposit in court title Number Gilgil/Karunga/Block1/1138 Kasambara) as security pending appeal in place of monetary security ordered by the lower court.
On the 11th February 2015, the lower court granted an order of stay of execution of the decree pending hearing of this appeal on condition that the entire decretal sum of Kshs.382,450/= is deposited in a joint account of the parties advocates.
In her affidavit in support of the application, the applicant deposes that she is unable to raise the sum ordered deposited as she had been hospitalised following a road traffic accident and offered alternative property stated above together with a value report and an official search. The valuation certificate dated 13th November 2014 and prepared by D.N. Arimi, a land valuer, gives a market value of Kshs.450,000/=. The certificate of official search dated 12th November 2014 confirms that applicant is the registered owner of the property.
2. In opposing the application, the respondent swore two affidavits on the 10th March 2015 and another by Mr. George Mbiyu Advocate on the 17th July 2015.
It is deposed that the applicant is a woman of means and can pay the monetary security as ordered by the court and that the application is only made to delay conclusion of the case. Attached as exhibit are assets including motor vehicles, bank shares and Bank accounts to show that she is able to raise the security of Kshs.382,000/=. It is further deponed that the security being offered as alternative to money may prove difficult to sell and realise the decretal sum should the appeal not be successful.
3. The court has considered that the trial court rejected a similar application and ordered monetary security to be deposited in court. I have perused annexture “GKMI” in the respondent's replying affidavit. It is a schedule of assets and shares ascertained for distribution to the applicant out of the Estate of her late husband. It includes five motor vehicles, six bank accounts and shares in seven banks and other institutions. That was November 2011. I am not convinced that the applicant, having been a beneficiary of the assets above stated, and in honesty is unable to raise Kshs.380,000/=. To offer land as security, though quite in order, may prove difficult to realise the decretal sum which continues to accrue interest in view of hard and long procedures towards sale of a property. I have noted that the applicant was unwell and hospitalised in 2011. Her current health condition has not been disclosed. It is not enough to ask the court to order substitution of the monetary security without giving persuasive reasons the applicant has not provided any proof that she is unable to raise the money. She could have provided bank statements of her various accounts to show how much money she holds in the said accounts. I agree with the respondent that the application is brought in bad faith and made to delay progression of the appeal.
For those reasons, the application is devoid of merit and is dismissed with costs.
Dated, signed and delivered in open court this 28th day of April 2016.
JANET MULWA
JUDGE