Fidelity Shield Insurance Co. v Jane Wairimu Kiruru [2017] KEHC 1230 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC NO. 241 OF 2017

FIDELITY SHIELD INSURANCE CO........................APPLICANT

VERSUS

JANE WAIRIMU KIRURU....................................RESPONDENT

RULING

The lower court gave judgment in favour of the respondent herein which aggrieved the applicant leading to the present application.  This is an application by way of Notice of Motion seeking orders of stay of execution of the lower court decree and leave to file appeal out of time.  The grounds upon which the application has been made have been set out on the face of the application alongside a supporting affidavit sworn by the senior legal officer of the applicant.  The application is opposed and there is a replying affidavit sworn by the advocate for the respondent.  Both counsel agreed that the determination shall be based on the affidavits on record.

The Judgment of the lower court was delivered on 28th April, 2017 and this application was filed on 19th June, 2017, a delay of one and half months.  The delay has been explained by the applicant to the satisfaction of the court.  The applicant is ready to comply with any conditions that may be set by the court including the deposit of security.

After the said judgment of the lower court, advocates for the parties entered into a consent relating to costs, and a letter dated 2nd June, 2017 was addressed to the Chief Magistrate in that regard.  On the same date, the advocate for the applicant wrote to the advocate for the respondent referring to the conversation the two had.  It is important to set out the contents of the said letter in full.  It reads as follows,

“RE: NAIROBI (MILIMANI) CMCC NO. 2348 OF 2016

JANE WAIRIMU KIRURU

VS

FIDELITY SHIELD INSURANCE  CO. LTD

The above matters and the telephone conversation between your Mr. Kaburu and Our Mr. Denis Onyinkwa of the 2/6/2017 instance refer.

Kindly find enclosed three sets of consent letters in triplicate for your kind signature.

Kindly let us have the signed copies to enable us call for the settlement cheque

Meanwhile kindly let us have your client account details to enable the settlement of the decretal dues herein.

Yours faithfull,

ONYINKWA & CO.

ADVCOATES.”

On 7th June, 2017 the respondent’s advocate wrote to the applicant’s advocate giving details of the bank account as requested.

The filing of this application is a complete about turn by the applicant.  I say so because the above cited correspondence alongside steps taken thereafter, clearly show a litigant that had submitted to the decision of the court.  The draft memorandum of appeal on record may as well present an arguable appeal.  On the other hand the respondent holds a judgment in her favour and in the circumstances, a legitimate expectation to enjoy the fruits of that judgment.

Taking into consideration the contents of the application and the reply thereto, I decline to grant any stay sought by the applicant.  However, the applicant may go ahead and lodge the appeal and in that case it is hereby given an extension of 30 days to do so.  The costs shall be on appeal.

Dated, signed and delivered at Nairobi this 7th   Day of December, 2017

A. MBOGHOLI MSAGHA

JUDGE