[2022] KEHC 1008 (KLR)
The court found that while there was a delay of about six months in filing the application for stay, the delay was not unreasonable in the circumstances. The court further held that the decretal sum of Kshs.12,586,387.58 was substantial, and in the absence of credible evidence of the respondent's financial ability...
Source-derived case information.
- Citation
- [2022] KEHC 1008 (KLR)
- Parties
- Appellant: Zebra Lounge Limited; Appellant: Petvenkata Sathya Narayana Abotula; Appellant: Srungarapu Raja Sekhar; Respondent: Modway Investment Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E566 of 2020
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- application_allowed_with_conditions
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Security for Due Performance, Substantial Loss, Delay in Filing, Appeal Process
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zebra Lounge Limited
Appellant
Petvenkata Sathya Narayana Abotula
Appellant
Srungarapu Raja Sekhar
Appellant
Modway Investment Limited
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the application for stay of execution was made without unreasonable delay.
- 2 Whether the applicants demonstrated that they would suffer substantial loss if stay is not granted.
- 3 Whether adequate security for the due performance of the decree has been offered.
Ratio Decidendi
The court found that while there was a delay of about six months in filing the application for stay, the delay was not unreasonable in the circumstances. The court further held that the decretal sum of Kshs.12,586,387.58 was substantial, and in the absence of credible evidence of the respondent's financial ability to refund the sum if the appeal succeeded, there was a likelihood of substantial loss to the applicants. The applicants expressed willingness to provide security, and the court determined that the most suitable security would be the deposit of the entire decretal sum in a joint interest-earning account in the names of the parties' advocates. Accordingly, the court granted a...
Court Disposition
application_allowed_with_conditions
Orders
- There shall be an order for stay of execution of the judgment delivered on 16th August, 2021 on the condition that the applicants deposit the entire decretal sum in an interest earning account to be held in the joint names of the parties’ advocates within 60 days, failing which the order for stay shall automatically...
- Costs of the application to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. E566 OF 2021
ZEBRA LOUNGE LIMITED..............1ST APPELLANT/APPLICANT
PETVENKATA SATHYA
NARAYANA ABOTULA.....................2ND APPELLANT/APPLICANT
SRUNGARAPU RAJA SEKHAR.......3RD APPELLANT/APPLICANT
-VERSUS-
MODWAY INVESTMENT LIMITED..........................RESPONDENT
RULING
1. This ruling relates to the Notice of Motion dated 11th February, 2022 taken out by the 1st, 2nd and 3rd appellants/applicants and supported by the grounds set out on its body and the facts stated in the affidavit of the 2nd applicant. The order being sought is for a stay of execution of the judgment delivered on 16th August, 2021 in Milimani CMCC No. 9318 of 2017 pending the hearing and determination of the appeal against the aforesaid judgment.
2. The respondent opposed the Motion by putting in the replying affidavit sworn by Catherine Wanderi on 21st March, 2022.
3. At the interparties hearing of the Motion, the parties’ respective advocates relied on the averments made in the respective affidavits.
4. I have considered the grounds laid out on the body of the Motion; and the facts deponed in the supporting and replyingaffidavits respectively.
5. I reiterate that the sole order being sought in the present instance is that of a stay of execution of the decree pending appeal.
6. The guiding provision is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay.
7. The first condition provides that the application must have been made without unreasonable delay. On the one part, the applicants are of the view that the instant Motion has been brought without unreasonable delay, while the respondent on the other part states that there has been inordinate delay in bringing the Motion.
8. From my perusal of the record, it is apparent that the impugned judgment; a copy of which is annexed to the Motion; was delivered on 16th August, 2021 while the Motion was filed about six (6) months later on the 11th day of February, 2022. In my view, while there has been a clear delay, I do not find the same to be unreasonable in the circumstances.
9. The second condition touches on the subject of substantial loss to be suffered by an applicant.
10. On the part of the applicants, it is stated that unless an orderfor a stay of execution is granted, the respondent will likely move to execute the decree, thereby rendering the appeal nugatory.
11. The respondent retorts by stating that no substantial loss has been demonstrated by the applicants and further states that being the registered owner and landlord of Capital Centre, it will be in a position to refund the decretal amount to the applicants in the event that the appeal succeeds.
12. Upon my perusal of the record, I note that the decretal sum which stands at Kshs.12,586,387. 58 is quite colossal in nature. In the absence of any credible evidence tendered to indicate or ascertain the respondent’s financial standing and ability to refund the aforementioned decretal sum, I am satisfied on the likelihood of substantial loss resulting to the applicants if the order for a stay of execution be denied.
13. Under the final condition which is the provision of security forthe due performance of such decree or order, the applicants have indicated their readiness and willingness to comply with the conditions to be set by this court. The respondent did not touch on this condition.
14. Upon considering the decretal amount in question and in the absence of any suggestions by the parties, I am of the view that an order for deposit of the same in a joint interest earning account would constitute the most suitable security.
15. Consequently, the Motion dated 11th February, 2022 succeeds, giving rise to the following orders:
i. There shall be an order for stay of execution of the judgment delivered on 16th August, 2021 on the condition that the applicants deposit the entire decretal sum in an interest earning account to be held in the joint names of the parties’ advocates/firm of advocates within 60 days from today, failing which the order for stay shall automatically lapse.
ii.Costs of the application to abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF APRIL, 2022.
………….…………….
J. K. SERGON
JUDGE
In the presence of:
…………………………… for the 1st, 2nd and 3rd Appellants/Applicants
…………………………… for the Respondent