Kenindia Assurance Co. Ltd v New Nyanza Wholesalers Ltd [2017] KEHC 1691 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL APPEAL NO.30 OF 2015

KENINDIA ASSURANCE CO. LTD.........................APPLICANT

VERSUS

NEW NYANZA WHOLESALERS LTD...............RESPONDENT

RULING

The applicant has brought this application by way of Notice of Motion dated 5th September 2017 pursuant to sections 1A, 1B,3A and 63(e) of the Civil Procedure Act and Order and Order 42 Rule 6(1),(2) and (7) of the Civil Procedure Rules,2010. The applicant is seeking for five orders. Two of the order are spent and the remaining are as follows:-

1. That there be a stay of execution in Busia CMCC No.57of 2014 and the decree of this court of 27th June 2017 pending the hearing and determination of an intended appeal to the court of appeal.

2. That the sum of Kshs. 2,342,531/= which the applicant deposited in the joint names of the advocates for the parties herein as security do remain so deposited as security for the intended appeal pending the hearing and determination of the intended appeal

3. That the costs of this motion be in the intended appeal.

The application was opposed. I was invited to note that the applicant has already paid the costs of the appeal that was dismissed and that this court is functus officio.

The submissions by both counsel have been considered when arriving at the conclusion herein.

I have taken note of the fact that the applicant’s counsel by a letter dated 30th august 2017 forwarded a cheque for Kshs.165 000/= being the settlement of the costs of the appeal. There is therefore no pending decree arising from the appeal.

Order 42 rule 6 (1) provides that the court appealed from, may for sufficient cause order a stay of execution of such a decree. In my opinion, this court is not functus officio in respect of the decree in the magistrate’s court.

For the court to grant an order under the provisions of Order 42 rule 6 (1) the party seeking such orders, where there is a monetary decree, must satisfy the court that if such orders are not granted and the appellant/ applicant succeeds in the intended appeal, then the applicant will be prejudiced for the respondent will not be in a position to pay back the amount involved. It is not enough to allege that the appeal will be rendered nugatory. In the instant application, the applicant has not demonstrated that should the appeal succeed, the respondent will be unable to pay back.

At the time of hearing of the application, it was not demonstrated that the applicant has filed the appeal. It remained an intention. I am not persuaded to act on an intention.

From the foregoing, the application lacks merit. The same is dismissed with costs.

DELIVERED and SIGNED at BUSIA this 5th day of December, 2017

KIARIE WAWERU KIARIE

JUDGE