Charles Omollo & Universal Freight & Logistic (K) Ltd v Julieta Liluka Khayumbi & Zipporah Venesa Kweti (Suing as legal Representative of the Estate of Reuh Damson Khayumbi (Deceased) [2018] KEHC 9419 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 186 OF 2018

CHARLES OMOLLO.........................................................1ST APPLICANT

UNIVERSAL FREIGHT & LOGISTIC (K) LTD...........2ND APPLICANT

VERSUS

JULIETA LILUKA KHAYUMBI

ZIPPORAH VENESA KWETI( Suing as legalRepresentative of the Estate

of Reuh DamsonKhayumbi (Deceased)..................................RESPONDENT

RULING

1. The application dated 26th April, 2018 seeks orders that there be a stay of execution and/or further execution of the decree in Nairobi Chief Magistrate Court (Milimani commercial Court) No. 577 of 2014 pending the hearing and final determination of this  appeal.

2. It is stated in the grounds  and the two affidavits in support that judgment was entered in the Lower Court against the Applicant for the sum of Ksh.1,584,624/= .  The Applicant is aggrieved by the said judgment and filed the appeal herein.  That the Applicant is threatened with execution and is apprehensive that the appeal which has high chances of success will be rendered nugatory and will thereby suffer substantial loss.

3. The application is opposed. It is stated in the replying affidavit that the appeal herein is an afterthought calculated to cause delay and frustrate the suit.  That the application has been filed after unreasonable delay and after the Respondent has incurred expenses having the Decree and Certificate of costs extracted.  That further expenses have also been incurred in giving instructions to auctioneers. It is contended that the Applicants have not furnished any security for the due performance of the decree.

4. The Respondent urged for the dismissal of the application.  In the alternative, that the Applicant be compelled to deposit the decretal sum together with the auctioneers charges in a joint interest earning account of the advocates on record.

5. I have considered the application, the reply to the same and the submissions made by the counsels.

6. Order 42 rule 6 (2) of the Civil Procedure Rules, 2010 provides as follows:

“No order for stay of execution shall be made under sub-rule (1) unless –

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

7. The judgment of the Lower Court was delivered on 21st March, 2018.  The application at hand was filed on 26th April, 2018. There was no unreasonable delay.

8. Although the Applicant has stated that he will suffer substantial loss, there are no allegations that the Respondent is not capable of refunding the decretal sum.  There is no security offered for the due performance of the decree.

9. To balance the competing interest of the parties and to give the Applicant a chance in exercise his undoubted right of appeal, I allow the application on condition that the decretal sum be deposited in an interest earning bank account of the counsels for the respective parties or in court within 30 days from the date hereof.

Date, signed and delivered at Nairobi this 31st day of July, 2018

B. THURANIRA JADEN

JUDGE