[2022] KEHC 14635 (KLR)
The court found that while a bank guarantee is generally sufficient security for the due performance of a decree, in the circumstances of this case, a bank guarantee alone would not be adequate. The court considered the interests of both parties and the need to balance the right of appeal with the respondent's right...
Source-derived case information.
- Citation
- [2022] KEHC 14635 (KLR)
- Parties
- Appellant: Peter Wachira Wanjohi; Appellant: Duncan Musyoka Muia; Respondent: Nyasivi Nguli Mbandi; Respondent: Mary Nduku Mule
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E482 of 2022
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- JN Mulwa
- Legal Topics
- Stay of Execution, Security for Decree, Money Decree, Appeal Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Wachira Wanjohi
Appellant
Duncan Musyoka Muia
Appellant
Nyasivi Nguli Mbandi
Respondent
Mary Nduku Mule
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution pending appeal.
- 2 What form of security is appropriate for the due performance of the decree pending appeal.
- 3 Whether a bank guarantee alone is sufficient security in the circumstances.
Ratio Decidendi
The court found that while a bank guarantee is generally sufficient security for the due performance of a decree, in the circumstances of this case, a bank guarantee alone would not be adequate. The court considered the interests of both parties and the need to balance the right of appeal with the respondent's right to enjoy the fruits of judgment. Consequently, the court ordered that 50% of the decretal sum be deposited into a joint interest-earning account in the names of the parties' advocates at Family Bank within 30 days, and the remaining 50% be secured by a bank guarantee from Family Bank in favour of the respondent within 28 days. Failure to comply with either condition would...
Court Disposition
application allowed with conditions
Orders
- Applicant to deposit 50% of the decretal sum into a joint interest earning account in the parties’ Advocates names at Family Bank within 30 days.
- The balance (50%) to be secured by a bank guarantee from Family Bank in favour of the respondent within 28 days from the date of the ruling.
Full Case Text
Judgment text and source record
29 paragraphs
Wanjohi & another v Mbandi & another (suing as administrators of the Estate of Joseph Musyoka Masivi (Deceased)) (Civil Suit E482 of 2022) [2022] KEHC 14635 (KLR) (Civ) (27 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14635 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Suit E482 of 2022
JN Mulwa, J
October 27, 2022
Between
Peter Wachira Wanjohi
1st Appellant
Duncan Musyoka Muia
2nd Appellant
and
Nyasivi Nguli Mbandi
1st Respondent
Mary Nduku Mule
2nd Respondent
suing as administrators of the Estate of Joseph Musyoka Masivi (Deceased)
Ruling
1. I have considered the parties’ affidavits for and in opposition to the application dated July 5, 2022; as well as the oral arguments tendered before me today.
2. The respondent is not opposed to the orders sought – for stay of execution pending hearing and the determination of the appeal, on condition that the decretal sum be deposited into a bank within 30 days. On the applicants’ part, it is sought that the decretal sum be secured by a bank guarantee from Family Bank.
3. Order 42 rule 6 Civil Procedure Rules states conditions that a party must meet for stay orders pending appeal to be granted.
4. The decretal sum as at August 31, 2022 is stated as Kshs 3,038,340/-. This is a money decree, and ordinarily, a money decree would not cause substantial loss to the respondent. The only issue is whether the respondent if paid the said money would be able to repay it back if the appeal is successful.
5. The decree hereof arises from a fatal accident claim wherein the deceased was a passenger and therefore the issue of liability does not arise. The judgment was delivered by the trial court on the April 1, 2022.
6. Considering the memorandum of appeal as filed, it appears that the only dispute is on the quantum of damages, awarded by the trial court
7. In the circumstances, whereas the applicant has offered to provide a bank guarantee as security for the due performance of decree, and whereas a bank guarantee is sufficient security, I am not persuaded that, in the circumstances of this application a bank guarantee alone will be sufficient.
8. I therefore allow the application dated July 5, 2022 upon the applicant complying with the following conditions:1. That the applicant shall deposit 50% of the decretal sum into a joint interest earning account in the parties’ Advocates names at Family Bank – any branch in Nairobi within 30 days;2. The balance (50%) to be secured by a bank guarantee, drawn from Family Bank in favour of the respondent, within 28 days from date of this ruling.3. In default of either (1) or (2) above, the stay orders shall lapse automatically.4. Costs of the application to the respondent.Orders accordingly.
DATED, DELIVERED AND SIGNED IN NAIROBI THIS 27THDAY OF OCTOBER, 2022. J. N. MULWAJUDGE