Automated Summary
Key Facts
Uniglobe Northline Travel Limited applied for a stay of execution of a judgment in favor of Agnes Kagure Kariuki pending an appeal. The applicant argued the respondent is impecunious and that paying the decretal sum would result in substantial loss if the appeal succeeds. The respondent opposed the application, claiming it lacks merit and is a delaying tactic. The court allowed the stay on condition that the applicant deposit the decretal sum in a joint interest-earning bank account of both parties' counsel or in court within 30 days.
Issues
- The court evaluated the Applicant’s claim that the appeal to the High Court had high chances of success. It noted that applicants seeking a stay from a Subordinate Court to the High Court are not required to prove an 'arguable' appeal (unlike appeals to the Court of Appeal), referencing precedents like Martha Njeri Wanyoike vs. Peter Machewa Mwangi [2015] eKLR.
- The court considered whether the Applicant satisfied the legal criteria for a stay of execution pending appeal, including proving substantial loss risk and providing security. The Applicant argued the Respondent was impecunious and the appeal had high chances of success, while the Respondent claimed the application lacked merit and was a delaying tactic.
Holdings
The court allowed the application for a stay of execution pending appeal on the condition that the Applicant deposit the decretal sum in a joint interest-earning bank account of the counsels for both parties or in court within 30 days from the date of the ruling. The court emphasized that the Applicant is not required to prove the appeal's success when applying to a higher court (High Court) for a stay from a Subordinate Court, and noted the Respondent failed to demonstrate her ability to refund the decretal sum if the appeal succeeded.
Remedies
The application is allowed on condition that the Applicant do deposit the decretal sum in a joint interest earning bank account of the counsels for both parties herein or in court within 30 days from the date hereof. Costs in cause.
Legal Principles
The court applied the principle that once an applicant demonstrates a reasonable fear of the respondent's inability to refund the decretal sum, the evidential burden shifts to the respondent to show their financial capability, as per Order 42 Rule 6 (2) of the Civil Procedure Rules and the precedent in Nairobi Civil Application 238 of 2005.
Precedent Name
National Industrial Credit Bank Ltd. vs. Aquinas Francis Wasike & Another
Cited Statute
- Evidence Act, Chapter 80 Laws of Kenya
- Civil Procedure Rules, 2010
Judge Name
B. Thurania Jaden
Passage Text
- To balance the interests of both parties herein, I allow the application on condition that the Applicant do deposit the decretal sum in a joint interest earning bank account of the counsels for both parties herein or in court within 30 days from the date hereof. Costs in cause.
- This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by respondent or the lack of them. One an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge – see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.