[2017] KEHC 7222 (KLR)
The court found that the applications for stay of execution were filed without delay and that the appeal raises arguable issues regarding the quantum of damages. The court was satisfied that the appellant is prepared to comply with any orders, and that the interests of justice require a conditional stay....
Source-derived case information.
- Citation
- [2017] KEHC 7222 (KLR)
- Parties
- Appellant: Vegpro Kenya Limited; Respondent: Agnes Kithua Kasivu; Respondent: Catherine Mwania
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 440 & 441 of 2016
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted on terms.
- Legal Topics
- Stay of Execution, Quantum of Damages, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vegpro Kenya Limited
Appellant
Agnes Kithua Kasivu
Respondent
Catherine Mwania
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the conditions for granting stay under Order 42 Rule 6 of the Civil Procedure Rules have been met.
- 3 Whether partial payment and security for the balance is appropriate in the circumstances.
Ratio Decidendi
The court found that the applications for stay of execution were filed without delay and that the appeal raises arguable issues regarding the quantum of damages. The court was satisfied that the appellant is prepared to comply with any orders, and that the interests of justice require a conditional stay. Accordingly, the court ordered partial payment of the decretal sum to each respondent and directed that the balance be deposited in an interest-earning account in the names of both counsels within 30 days. This approach balances the appellant's right to appeal with the respondents' right to enjoy the fruits of their judgment, pending the outcome of the appeal.
Court Disposition
Stay of execution granted on terms.
Orders
- The appellant shall pay to each respondent Kshs. 100,000 out of the decretal sum.
- The balance of the decretal sum shall be deposited in an interest earning account in the names of both counsel on record within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 440 AND 441 OF 2016
CONSOLIDATED
VEGPRO KENYA LIMITED.....................APPELLANT
VERSUS
AGNES KITHUA KASIVU...................RESPONDENT
CATHERINE MWANIA........................RESPODNENT
RULING
These applications arise from the same cause of action. The appellant is the same but the respondents are different. Both seek an order for stay of execution arising from the decision of the lower court.
The respondents were injured in an accident and following a trial in the lower court, both were awarded Kshs. 200,000/= general damages and Kshs. 5,000/= respectively. The appellant was aggrieved by the said judgment and has filed a Memorandum of Appeal.
The appellant has filed an application for stay of execution pending the determination of the appeal. The application is opposed and both counsel have filed written submissions.
Going by the provisions of Order 42 Rule 6 of the Civil Procedure Rules, I have no doubt that the applications were filed timeously and the Memorandum of Appeal discloses an arguable appeal. The appellant is also ready to comply with any orders of the court.
The appeal is against quantum of damages and not liability. I am persuaded that there should be stay of execution but on the following terms; the appellant shall pay to each of the two appellants a sum of Kshs. 100,000/= out of the decretal sum. The balance shall be deposited in an interest earning account in the names of both counsel on record within 30 days from the date of this ruling. The costs shall be on appeal.
A.MBOGHOLI MSAGHA
JUDGE
Dated, signed and delivered at Nairobi this 23rd Day of February, 2017
JUDGE