Kenya Commercial Bank Limited v Bamburi Cement Limited & Patrick Karithi Njeru & Felesta Kamori t/a Pafeka General Stores [2017] KEHC 1480 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 195 OF 2017

KENYA COMMERCIAL BANK LIMITED...................APPELLANT

VERSUS

BAMBURI CEMENT LIMITED

AND

PATRICK KARITHI NJERU & FELESTA KAMORI

T/A PAFEKA GENERAL STORES.............INTERESTED PARTY

RULING

This is an application by the appellant by way of Notice of Motion dated 18th September, 2017 under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6  and 51 Rule 1 of the Civil Procedure Rules, seeking a stay of execution of the judgment of the lower court.

The appellant is apprehensive that the respondent shall proceed with execution, yet the appeal raises triable issues of law and fact and has overwhelming chances of success.  If execution of the lower court judgment is not stayed, the appeal shall be rendered nugatory.  The appellant does not know the financial standing of the respondent and believes it might not recover the decretal sum which now stands at about Ksh. 5,000,000/= if the appeal is allowed.

The appellant is ready to abide by any condition including the deposit of the decretal sum in court or in a joint interest earning account pending the hearing and determination of the appeal.

The application is opposed and a replying affidavit has been filed by the company secretary of the respondent.  An earlier application for stay of execution, the respondent states, was dismissed by the lower court.  It is also submitted that the respondent is a public company listed in the Nairobi Security Exchange, whose financial statements are publicly available and within the appellant’s knowledge.

It will amount to denial of the use of funds if the  decretal sum  is deposited as suggested by the appellant, and that suggestion is a confirmation that it is intended to deny the respondent of such use. Further, the respondent is in a financial position to refund the decretal sum should the intended appeal succeed.

I have considered rival positions of the parties herein.  The application was filed timeously.  The respondent holds a valid judgment.    The judgment carries special rates of interests at commercial rate of 1. 5% per month from July 2003.  In fact, it is that rate of interest that has escalated the figure to about Ksh. 5,000,000/= because the decretal sum at the time the lower court judgment was pronounced was about Ksh.1,200,000/=.

The appellant makes no commitment that if the decretal sum is deposited as suggested it will attract that interest.  In fact it may be more beneficial for the appellant to meet the decretal sum at this stage rather than waiting for the determination of the appeal.  I say so because, in the event the appeal is dismissed, the figure payable may be astronomical.

The court takes judicial notice that the respondent is indeed a public company known for production of cement, and listed in the Nairobi Security Exchange as correctly stated in reply to the application.  I entertain no doubt that in the event the appeal succeeds the respondent shall be in a position to refund the amount so paid by the appellant.  In view of the foregoing, this application must fail. It is accordingly dismissed.  The costs shall be in the appeal.

Dated, signed and delivered at Nairobi this 14th Day of November, 2017

A.MBOGHOLI MSAGHA

JUDGE