Kenindia Assurance Company Limited v Charels Mungaithi (Suing as an Administrator of James Mumo Mungaithi) [2017] KEHC 1357 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL  NO. 287  OF 2017

KENINDIA ASSURANCE COMPANY LIMITED......................APPELLANT

-V E R S U S –

CHARELS MUNGAITHI (Suing as an

Administrator of James Mumo Mungaithi).................... RESPONDENT

RULING

1) Kenindia assurance Company limited, the applicant/appellant herein, has taken out the motion dated 20/6/17, the subject matter of this ruling in which it sought for the following orders:

1. THAT  this application be certified urgent and that the same be heard exparte in the first instance.

2. THAT there be a temporary stay of execution of the decree and or order issued in Milimani SRCC 4632 of 2012 pending the hearing and determination of this application.

3. THAT there be a stay of execution of the decree and or order issued in Milimani SRCC 4632 of 2012 pending the hearing and determination of this appeal.

4. THAT the costs of this application be provided for.

2) The motion is supported by the affidavit of Simon Kioko Mwanzia. The respondent filed a replying affidavit of Charles Mungathi to oppose the motion. When the motion came up for interpartes hearing, learned counsels appearing in this matter recorded a consent order to have the motion disposed of by written submissions.

3) I  have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application.  I have also considered the rival submissions.

4) The applicant avers that the respondent is likely to proceed with execution, thus rendering the appeal nugatory more so that the respondent did not testify that he is in gainful employment hence the need to secure the judgement sum in the joint account or it be deposited in court.  Finally that the applicant is ready and willing to furnish security and or comply with any other order as to security that the court may deem fit to grant.

5) The respondent on the other hand avers that no prejudice is going to be suffered by the applicant if stay of execution is not granted.  The applicant motion has been made only to deny him the fruits of the judgment.  The respondent avers that he is a person of means.  As to the issue of security, the respondent is urging this honourable court to order the applicant to pay half of the decretal sum and half of the costs, then deposit the balance with the court or  in a joint interest earning account in the names of the advocates on record.

6) The principles to be considered in determining an application for stay of execution are well stated under Order 42 of the Civil Procedure Rules.    First, an applicant must show the substantial loss it would suffer if the order for stay is denied.  Secondly, the application for stay should be filed without unreasonable delay.  Thirdly that the court should consider the provision of security for the due performance of the decree.

7) On the first principle, the appellant/applicant is of the view that it would suffer substantial loss if the order for stay is denied because the respondent is not a person of means.

8) The applicant is of the view that the respondent is not a person of means as such if the decretal sum or part of it is passed over to him, the chances of recovering the same will be nil.  There is no evidence presented before this court in support of his claim that he is a person of means. The respondent did not answer this issue in his reply to the motion.  He however stated that he thinks that no prejudice is going to be suffered by the applicant if the order for stay of execution is not granted.

9) The second principle is that the application should be filed without unreasonable delay.  It is apparent on record, this appeal was filed on 9th June, 2017  while the motion was filed on 20th June, 2017. I am satisfied that the motion was timeously filed.

10) The third principle is the provision of security for the due performance of the decree.  The appellant has stated that it is willing to furnish security.  The respondent on the other hand is saying that if this court is inclined to grant the order for stay then, the same should be granted on condition that the appellant pays the decretal sum to him.  On my part, I think a fair order on the issue touching on security, is which I hereby direct, that the appellant deposits the decretal sum of ksh.227,085/= in an interest earning account in the joint names of the advocates and or firms of advocates within 30 days from the date hereof.

11) In the end, the order for stay is granted on condition specified hereinabove.  Costs of the motion to abide the outcome of the appeal.

Dated, Signed and Delivered in open court this 10th  day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

....................................................  for the Appellant

..................................................... for the Respondent