British-American Insurance Company (Kenya) Limited v T N M(A minor suing through his mother and Next friend A N O) [2017] KEHC 9617 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 231 OF 2017

BRITISH-AMERICAN INSURANCE

COMPANY (KENYA) LIMITED..........................................APPLICANT

VERSUS

T N M(A minor suing through his

mother and Next friend A N O)..................................RESPONDENT

RULING

1. The application dated 15TH June, 2017 seeks orders that pending hearing and determination of the Appeal, this Honourable Court be pleased to stay the execution of the default judgment entered on 8th September 2016 and resulting decree.

2. The application is predicated on the grounds stated therein and is supported by the affidavit of Calvin Ondigi, a Legal Analyst-Legal and Company Secretary at the Applicant company.  It is stated that the Applicant is aggrieved by a ruling delivered by the lower court on 10th May, 2017, hence the appeal filed herein.  It is further stated that the appeal has merits and that the Applicant is willing to settle the Respondent’s claim upon being supplied with the complete documents in support of the same.

3. The application is opposed through the replying affidavit filed by the Respondent.  It is stated that the issue of stay has already been before the trial court.  It is further stated that the application has been filed after inordinate delay and that the Applicant has failed to show what loss it will suffer if stay is not granted.  That no security has been offered by the Applicant. That in any event it has not been demonstrated that the Respondent is not a “woman of straw”.  That whether the appeal has merits or not is irrelevant to the application herein and the application should be dismissed with costs.

4. Order 42 rule 6 (2) provides for the following conditions to be met in an application for stay of execution.

“6. (2) No order for stay of execution shall be made under subrule

(1) unless—

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the applicationhas 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.”

5. The ruling of the lower court was delivered on 10th May, 2017.  The appeal herein was filed on 15th May, 2017 and the application at hand was filed on 10th June, 2017.  There was no unreasonable delay.

6. It is stated in the grounds in support of the application that the Applicant will suffer irreparable damage and the appeal rendered nugatory if stay is not granted.  However, there is no evidence in the affidavit in support to demonstrate why the Applicant is of that view.  There are no fears expressed that the Respondent who is an advocate of the High Court of Kenya is incapable of refunding the decretal sum.  As stated by the Court of Appeal in the case of Kenya Shell Limited vs. Kibiru (1986) KLR:

“Substantial loss in its various forms, is the cornerstone of the jurisdictions for granting a stay.  That is what has to be prevented.”

7. The Applicant has expressed willingness to settle the claim.  However, no security for the due performance of the decree was offered.  This court however has the discretion to impose conditions in a successful application.

8. On whether the appeal has high chances of success, under Order 42 Rule 6 (2) of the Civil Procedure Rules, the Applicant is seeking orders of stay pending appeal from the subordinate court to the High court.  The applicant is not required to prove that he has an arguable appeal, unlike if it was an application in respect of an appeal to the Court of Appeal seeking stay of execution of decree of the High Court pending appeal to the Court of Appeal.  (See for example Nakuru HCCC 211/98- Martha Njeri Wanyoike & 3 others –vs- Peter Machewa Mwangi & 5 Others; Bake ‘N’ Bite (Nrb) Limited –vs- Daniel Mutisya Mwalonzi [2015] eKLR).

9. Having held that there is no substantial loss demonstrated, the Applicant has failed to meet one of the conditions for the grant of stay of execution. Consequently, I dismiss the application with costs.

Dated, signed and delivered in Nairobi this 7th day of Nov., 2017

B. THURANIRA JADEN

JUDGE