Kenindia Assurance Company Limited v Kling Development Limited [2017] KEHC 9188 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MILIMANI CIVIL DIVISION

CIVIL APPEAL NO. 54 OF 2017

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

VERSUS

KLING DEVELOPMENT LIMITED.....................................................RESPONDENT

RULING

1. The Appellant has moved this Court by way of a Notice of Motion dated 17th February, 2017 under Order 42 Rule 6 (2), of the Civil Procedure Rules, 2010 and section 63 (e) of the Civil Procedure Act seeking the following orders: -

(a) That there be a temporary stay of execution of the decree issued in Milimani CMCC No. 3072 of 2012 pending the hearing and determination of this application.

(b) That there be a stay of execution of the decree issued in Milimani CMCC No. 3072 of 2012 pending the hearing and determination of this appeal; and

2. The Motion is premised on the grounds on the body of the application and the Supporting and Further Affidavits of SIMON KIOKO MWANZIA the Legal Officer of the Appellant. The Application is opposed by the Respondent via a Replying Affidavit of BHIMJI RAMJI HALAI, a director of the Respondent.

3. The application raises a number of issues which can only be determined during hearing of the appeal but not at this stage. These include the grounds stated on the application that the lower court erred in entering the judgment and that the Respondent never proved her case on a balance of probability. The fact that the Respondent has threatened to execute the decree is not a sufficient ground to warrant a stay of execution. This position was stated in Timsales Limited Vs. Hiram Gichohi Mwangi, Civil Appeal Number 94 of 2008 (2013) where the court stated that the mere fact that the process of execution has commenced or is likely to commence does not amount to substantial loss for the reason that execution is a legal process and that the Appellant must establish other factors.

4. The conditions for granting an order of stay of execution are outlined in Order 42 Rule 6 of the Civil Procedure Rules. The said factors were also reiterated by Ringera J ( as he then was) in Global Tours & Travels Limited winding up cause No. 43 of 2000. These are;

(a) That the application has been made without unreasonable delay;

(b) That security for costs has been given; and

5. The instant application as well as the Memorandum of Appeal were filed 30 days after the judgment being appealed against herein was delivered. Even though the application was not filed timeously, the same was made without unreasonable delay.

6. In the Supporting Affidavit, the Appellant states that they are ready and willing to furnish security and/or comply with any other Order as to security that the Court may deem fit to grant. The Appellant having satisfied those two requirements, I will proceed to consider the third requirement which is whether substantial loss may result to the Applicant unless the order for stay is made.

7. In the Application as well as the Affidavits, it is stated that if execution is allowed to proceed, the Appeal will be rendered nugatory. The Applicant also states that the Respondent is not well financially, and its business is not vibrant. On the other hand, the Respondent has on a balance of probability provided evidence to show that the company is financially capable of refunding the decretal amount in the event that the Appeal is successful. Attached to the Respondent’s Affidavit is a trial balance for the year ending 31st December, 2015. The decretal amount is Kshs. 493,143/= and a comparison of this amount with the Respondent’s trial balance will lead to a logical conclusion that the Respondents is capable of re-imbursing the decretal sum in case the appeal succeeds.

8. The Respondent has a money decree that he may wish to execute and has proven on a balance of probability that in case the appeal is successful, it is capable and willing to refund the decretal amount. For this reason, the application dated 17th February, 2017 is hereby dismissed.

Dated, signed and delivered at Nairobi this 14th day of July, 2017

…………………

L. NJUGUNA

JUDGE

In the presence of:

…………………………. for the Appellant

…………………………. for the Respondent