Monicah Moraa v Kenindia Assurance Co Limited [2014] KEHC 338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL CASE NO. 43 OF 1999

MONICAH MORAA……………………….........APPLICANT

VERSUS

KENINDIA ASSURANCE CO. LIMITED……RESPONDENT

RULING

This is an application by chamber summons dated 11th August, 2014 by the Defendant/Applicant for the following orders; inter alia:

This court be pleased to extend the orders of stay, given on the 10th of June, 2013, to 17th of July, 2015, tied to the date when the Defendant’s bank guarantee/bond, was itself extended to, pending the hearing and determination of appeal to the court of Appeal.

This court be pleased to re-affirm the terms of the stay issued vide its ruling dated 10th June, 2013 and the defendant be granted leave to file an extended bond/bank guarantee as security and that the said extended bond/bank guarantee which has been filed herein be validated.

That pending the hearing and determination of this application, inter-partes this court be pleased to grant interim orders staying attachment/collection/sale of the defendant’s properties as well as staying further execution.

That further orders be made as may be just and expedient.

Costs in the cause.

On 10th June, 2013 the High court granted a conditional stay of execution, with a bank guarantee/bond of nine million, being the decretal amount and security for costs.  The defendant had the bond/bank guarantee executed.  However, there was no time limit.

The appeal was quickly filed in the court of Appeal, being appeal No. 50 of 2013.  The bond was to last until the appeal is heard and determined especially paragraph 4, lines 25-29.

The Defendant therefore believed the bond would last as long as the appeal would last.  It was not so.  The bond expired on 16th July, 2014.  The Plaintiff. Noticing that the bond period had expired, took out a Notice to show cause, warrants of attachments and proclamination on Defendants properties were effected.

The Defendant has now extended the Bank Guarantee/bond to 15th June, 2015.  He now seeks to have this bond validated by the court and seek to extend the stay of execution extended to the life of the bank guarantee/bond.

The Defendant stands to suffer a great irreparable loss should the execution continue.  The defendant is ready, willing and capable of abiding in full with any other reasonable conditions that the court may set for confirmation of the stay pending the hearing of the appeal.  Further the Plaintiff has not suffered any prejudice all circumstances of this case considered.

The court read the submissions of the defendant and those of the plaintiff.  The defendant has cited, Peter Mwaro Vidso vs. Brenda Nduku Mutisya, Misc. 53 of 2006, at Mombasa.  Also cited is case of Kirinyaga Construction (K) Ltd vs. Oscar Dunscan Beauttah, Civil appeal No. 49 of 2007, at Nyeri.  Also cited in his submission was: Jassan Kiptoo Kosgei t/a Teaachasis wholesalers vs. National Bank of Kenya ltd, Civil case No. 59 of 2000.

In all those cases the court held the appeal would be rendered nugatory, if the stay were not granted,  causing the applicant to suffer irreparable loss.  That where there is justification to reinstate the stay order the court would not hesitate to do so.

For the above reasons the court will allow the application dated 11th August, 2014, will order as follows:

The order of stay dated 10th June, 2013 be and is hereby extended to 15th June, 2015.

The bank guarantee/bond executed as a security to 17th June, 2015 be and is hereby validated.

Pending the hearing and determination of the appeal No. 50 of 2013, interim orders are hereby given staying attachment/collection/sale of the Defendant’s properties in  Kisumu and Kisii.

That pending the hearing and determination of appeal No. 50 of 2013, should the bank guarantee/bond expire before the hearing and determination of the said appeal, the applicant to negotiate with his bank the extension of the bank guarantee/bond and consequently to seek the extension of the order for stay of execution of judgment and decree.

The costs be in the cause.

It is so ordered.

Dated and delivered at KISII this 1st day of December 2014.

C.B. NAGILLAH

JUDGE

In the presence of:-

N/A for the applicant.

Kaburi holding brief for Nyamurongi for the respondent

Edwin Mongare - Court Clerk.