Peter Nduva v Abdulkadir Osman (Suing as legal representative of the Estate of Hussein Abdulkadir (Deceased) [2020] KEHC 382 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram:  D. K. Kemei – J

CIVIL APPEAL NO. 166 OF 2019

PETER NDUVA...............................................................................APPLICANT

VERSUS

ABDULKADIR OSMAN

(Suing as legal representative of the Estate of

HUSSEIN ABDULKADIR (deceased).......................................RESPONDENT

RULING

1. This is an application by the Applicant dated 16. 12. 2019 seeking primarily stay of execution of judgement and decree in Mavoko SPMCC No. 1305 of 2018 pending the hearing and determination of the appeal from a judgement rendered between the parties on 20. 11. 2019. The Application is supported by an affidavit deponed by Sylvia Imbusi, the legal officer of the insurers of the suit vehicle.

2. The deponent averred that the quantum of damages awarded was excessive and that they are aggrieved.  The applicants annexed a Memorandum of Appeal exhibiting their grounds of appeal against the learned trial magistrate’s judgement. The applicants aver in the supporting affidavit that they are willing to furnish the requisite security for the performance of the decree pending the appeal.

3. The Application is opposed vide replying affidavit deponed by Abdulkadir Osman on 3. 2.2020 who was amenable to the deposit of the decretal amount in an interest earning account in the names of the advocates on record for the parties.

4. The Application was canvassed by way of written submissions which I have duly considered.

5. The issue for determination is whether the Applicant has presented sufficient reasons to justify a grant of an order of stay of execution pending determination of the appeal. Order 42 Rule 6 of the Civil Procedure Rules is the operative law in deciding whether the prayer is merited.

6. The case of Antoine Ndiaye v African Virtual University [2015] eKLRgave the guiding principles for stay orders, in semblance with Order 42 Rule 6 of the Civil Procedure Rules; to wit,

a. The Application was brought without undue delay.

b. Substantial loss suffered by the applicant if the order is not granted.

c. Security for performance.

7. I have looked at the application herein, and with regard to the condition of undue delay, the record indicates that the judgement was passed on 20. 11. 2019 while the present application was filed on 18. 12. 2019; within a month. I find that from the evidence available the delay is not inordinate. With regard to the issue of substantial loss, I am unable to find the substantial loss that the applicants shall suffer save that his right to be heard on appeal will be extinguished if the order is not granted. I am also unable so see the loss that the respondent will suffer if the order is granted since he has proposed that the decretal sums be deposited in a joint account pending determination of the appeal. On the issue of security for performance, the respondent is not averse to receiving a requisite security for the performance of the decree. The appellant’s legal officer has confirmed in the affidavit in support of the application that the appellant is very much ready and willing to deposit the entire decretal sum into a joint account.  In these circumstances I am satisfied that on a balance of probabilities the applicant has met the basic requirements for grant of an order of stay of execution pending determination of the appeal. The deposit of the decretal amount in a joint account will take care of the parties’ concerns.

8. Consequently, I find merit in the application dated 16. 12. 2019. An order of stay of execution of the judgement in Mavoko Cmcc No. 1305 of 2015 is hereby granted upon the appellant depositing the entire decretal amount into a joint interest earning account in the names of the advocates of the parties within thirty (30) days from the date of this ruling failing which the stay shall lapse. The costs hereof shall abide in the appeal.

Dated and delivered at Machakos this 2nd day of December 2020.

D. K. Kemei

Judge