[2021] KEHC 7092 (KLR)
The court found that the appellant demonstrated a real risk of substantial loss if the vehicle was released to the respondent before the appeal was determined, particularly given the respondent's difficulty in raising the security previously ordered and the lack of assurance that the vehicle would remain available...
Source-derived case information.
- Citation
- [2021] KEHC 7092 (KLR)
- Parties
- Appellant: Toyota Kenya Limited; Respondent: James Njenga Kinyanjui
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E022 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Security for Performance, Substantial Loss, Balancing of Equities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Toyota Kenya Limited
Appellant
James Njenga Kinyanjui
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the trial court's order pending appeal.
- 2 Whether the appellant will suffer substantial loss if the vehicle is released to the respondent before the appeal is determined.
- 3 What conditions, if any, should be imposed for the grant of stay.
Ratio Decidendi
The court found that the appellant demonstrated a real risk of substantial loss if the vehicle was released to the respondent before the appeal was determined, particularly given the respondent's difficulty in raising the security previously ordered and the lack of assurance that the vehicle would remain available if the appeal succeeded. The court emphasized the need to balance the competing interests of both parties and held that a conditional stay was appropriate to preserve the subject matter of the appeal. Accordingly, the court granted a stay of the trial court's order requiring release of the vehicle, pending the hearing and determination of the appeal, with costs of the...
Court Disposition
Conditional stay of execution granted pending appeal.
Orders
- The order of 25th November, 2020 in Limuru Chief Magistrate’s Court Civil Case No. 333 of 2019 requiring release of vehicle registration No. KCE 803Q is stayed pending hearing and determination of this appeal.
- Costs of the Notice of Motion dated 1st December, 2019 shall abide with the outcome of this appeal.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CIVIL APPEAL NO. E022 OF 2020
TOYOTA KENYA LIMITED...............................................APPELLANT
VS.
JAMES NJENGA KINYANJUI........................................RESPONDENT
RULING
1. This is a ruling of the Notice of Motion application dated 1st December, 2020. That application is filed by TOYOTA KENYA LIMITED, the appellant in this appeal. The appeal is against the trial court’s Ruling of 25th November, 2020 in Limuru Chief Magistrate’s Court Civil Case No. 333 of 2019. By that ruling the trial court ordered the appellant to release motor vehicle registration No. KCE 803Q upon the respondent in this appeal, JAMES NJENGA KINYANJUI, providing Kshs.100,000/= as security, which amount was to be deposited into joint account of both advocates of the parties. The trial court also restrained the appellant from seizing the said vehicle. The trial court ordered the freezing of appellant’s storage charges of that vehicle as at the date that ruling was delivered.
2. The appellant being aggrieved with that ruling filed this appeal. Pending hearing and determination of the appeal, the appellant prayed, by the present application for stay of the orders thereof.
3. The application is supported by the affidavit of the appellant’s advocate, Vivienne Wanjiru. The appellant, through that affidavit stated that it stands to suffer substantial loss if stay is not granted and the vehicle is released without security. The appellant quantified the amount of storage charges due as at the date of filing the application as Kshs.672,000/=.
4. The respondent relied on his affidavit dated 23rd December, 2020. The respondent in that affidavit gave the background of the dispute that is, he took the subject vehicle to the appellant, at the appellant’s invitation, to service the subject vehicle. That he paid for that service but the appellant declined to release the vehicle on making that payment due to accumulated storage charges. The respondent also stated that the vehicle was his source of business and his family was suffering without the vehicle.
5. The condition which must be met by an applicant are set out in Order 42 Rule 6 of the Civil Procedure Rules which provides:-
“(2) No order for stay of execution shall be made under sub-rule (1) unless:-
(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
6. Having considered the rival submissions and affidavit evidence, I find this is a case where the court is required to balance the interest of the two parties. That balancing act, in case for stay pending appeal was considered in the case of TASSAM LOGISTICS LTD VS. DAVID MACHARIA & ANOTHER (2019) eKLRthus:-
“16. They cite the authority ofKENYA COMMERCIAL BANK LTD –VS- SUN CITY PROPERTIES LTD & 5 OTHERS [2012] eKLRwhere it was held:
“In an application for stay, there are always two competing interest that must be considered. These are that a successful litigant should not be denied the fruits of his judgment and that an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory. These two competing interests should always be balanced.””
7. The appellant has deponed that if the vehicle is released under the conditions set by the trial court it will suffer substantial loss because it holds the vehicle as security for the amount owed by the respondent. It is clear that there is basis of that deposition because the respondent when he was ordered to deposit Kshs.100,000/= as deposit, he was unable to raise the same within the time frame given by the trial court – indeed it took him 5 months to raise that amount. It becomes obvious that if indeed the vehicle is released to the respondent and the appellant succeeds in its appeal, the appellant may suffer substantial loss of the security it holds the vehicle having been released. There is no guarantee that on release of that vehicle the respondent will not dispose of it.
8. It is because of the above I will grant conditional orders as follows:-
(a) The order of 25th November, 2020 in Limuru Chief Magistrate’s Court Civil Case No. 333 of 2019 in as far as requires release of vehicle registration No. KCE 803Q is hereby stayed pending hearing and determination of this appeal.
(b) The costs of the Notice of Motion dated 1st December, 2019 shall abide with the outcome of this appeal.
RULING DATED, SIGNED AND DELIVERED AT KIAMBU THIS 13TH DAY OF MAY, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant………………….Ndege
Appellant: …………………….No appearance
Respondent: ……………...……Ms. Wambua
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE