[2021] KEHC 7275 (KLR)
The court held that security for stay of execution pending appeal must be sufficient to cover the entire decretal amount, not just a portion thereof. The court relied on Order 42 Rule 2(b) of the Civil Procedure Code and the precedent set in Mwaura Karuga T/A Limit Enterprises vs KBS Ltd & 4 Others (2015) eKLR,...
Source-derived case information.
- Citation
- [2021] KEHC 7275 (KLR)
- Parties
- Applicant: United Ssiass Investments Ltd; Applicant: Peter Mwenje; Respondent: Ndegwa Ngunyi, Daniel Ngunyi Ndegwa & Mary Wangui (Suing as the administrators of the estate of John Mwangi Ndegwa)
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case E0017 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application for stay of execution allowed on condition; leave to appeal out of time granted.
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
United Ssiass Investments Ltd
Applicant
Peter Mwenje
Applicant
Ndegwa Ngunyi, Daniel Ngunyi Ndegwa & Mary Wangui (Suing as the administrators of the estate of John Mwangi Ndegwa)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted stay of execution pending appeal.
- 2 Whether leave to appeal out of time should be granted to the applicants.
- 3 What is the appropriate security to be deposited pending appeal.
Ratio Decidendi
The court held that security for stay of execution pending appeal must be sufficient to cover the entire decretal amount, not just a portion thereof. The court relied on Order 42 Rule 2(b) of the Civil Procedure Code and the precedent set in Mwaura Karuga T/A Limit Enterprises vs KBS Ltd & 4 Others (2015) eKLR, which emphasized that the security should be for the amount that may ultimately be binding on the applicant. The applicants' proposal to deposit only part of the decretal sum was rejected, and the court ordered that the full decretal amount be deposited as security. Leave to appeal out of time was granted, and directions were given for the expeditious hearing of the appeal.
Court Disposition
Application for stay of execution allowed on condition; leave to appeal out of time granted.
Orders
- The applicant shall deposit Kshs. 8,115,792 in court or in an interest earning account of parties' advocates within 30 days, or alternatively deposit a bond or bank guarantee in court within 30 days, failing which execution to proceed.
- The trial court file be availed to this court for expeditious hearing of the appeal.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
MISC. CIVIL CASE NO. E0017 OF 2021
UNITED SSIASS INVESTMENTS LTD........................................1ST APPLICANT
PETER MWENJE...........................................................................2ND APPLICANT
VERSUS
NDEGWA NGUNYI, DANIEL NGUNYI NDEGWA &
MARY WANGUI (Suing as the administrators of the estate of
JOHN MWANGI NDEGWA) ………………………………………...RESPONDENT
RULING
This matter came for hearing of Notice of Motion dated 27/04/2021. The Applicants were represented by Mr. Matiri Advocae and the Respondent by Mr. Opondo Advocate.
The core issues of this application are hinged on the elements of stay of execution and leave to appeal out of time.
Both sides attempted an agreement on execution of the two (2) issues above. The bone of contention was that the Applicant liability is caped at Kshs.3,000,000/- but the decretal amount impugned exceeds Kshs.8,000,000/-. Thus the insurance for the Applicant proposed to deposit Kshs.2,000,000/- in court or interest earning account and Kshs.1,000,000/- be paid to the Respondents.
The Respondents side countered the proposal by suggestion of deposit of the entire decretal amount in court pending hearing the matter and determination.
After a span of time of haggling between the two (2) Advocates above, they sought court to make a decision on security issue and meanwhile grant leave to file appeal out of time.
Thus the court directed that the appeal be lodged within 7 days and that ruling on security to be delivered on 06/05/2021 at 10. 00am.
Under Order 42 Rule 2 (b) Civil Procedure Code,security availed pending appeal is for due performance of decree or order as may ultimately be binding an Applicant.
In the case of Mwaura Karuga T/A Limit Enterprises vs KBS Ltd & 4 Others (2015) eKLRheld that;
“The security must be one which might ultimately be binding an Applicant. The Rule does not envisage any just any security. The word “ultimately be binding” are deliberately used and are useful here, for refer to entire decree as will be payable at the time the appeal is lost. That is the presumption of the law here……. The security to be given is measured on that yardstick.”
Relying on the aforesaid authorities, I am persuaded that the security is to be ordered to cover the entire decretal amount.
Thus the court makes the following orders;
1. The Applicant shall deposit Kshs. 8,115,792/- in court or interest earning account of parties Advocate within 30 days. In alternative a bond or bank guarantee be deposited in court within 30 days, in default execution to proceed.
2. The trial court file be availed to this court for expeditious hearing of the appeal.
Dated, Signedand Deliveredat NYAHURURUthis6thday of May,2021.
………………………………..
CHARLES KARIUKI
JUDGE
PRESENT:
Matiri for Applicant
Opondo for Respondent
Court Assistant – Eric