Case ID:176157

Daniel Mwangi Gicheru v James Njoroge Gitau & another [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Application E432 of 2020

Parties:

Daniel Mwangi Gicheru v James Njoroge Gitau & Reuben Kambo Mwangi

Date Delivered:

27 May 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Amraphael Mbogholi-Msagha

Citation:

Daniel Mwangi Gicheru v James Njoroge Gitau & another [2021] eKLR

Advocates:

Mr. Muhuni for the Applicant

Ms. Obwori for the 1st Respondent

Court Division:

Civil

County:

Nairobi

Advocates:

Mr. Muhuni for the Applicant

Ms. Obwori for the 1st Respondent

History Advocates:

Both Parties Represented

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. E432 OF 2020

DANIEL MWANGI GICHERU ……………….....................………. APPLICANT

VERSUS

JAMES NJOROGE GITAU ………….………..…..............…. 1

ST

RESPONDENT

REUBEN KAMBO MWANGI ……….............……….…….. 2

ND

RESPONDENT

RULING

This is an application by way of Notice of Motion seeking orders that there be a stay of execution of the lower court Judgment delivered on 5

th

May 2020 pending the hearing and determination of the appeal. There is also a prayer that leave be granted to appeal and file the Memorandum of Appeal out of time and that the draft Memorandum of Appeal annexed to the application be deemed as duly filed.

The application is supported by the grounds set out on its face in addition to the supporting affidavit sworn by the applicant. The application is opposed and there is a replying affidavit sworn by Roselyne Kihara the Legal Officer at ICEA Lion Insurance Co. Limited who are said to be the insurers of the 1

st

respondent. There is then a further affidavit sworn by Ayub Muhuni Advocate in answer to the replying affidavit. Both parties have filed written submissions and cited some authorities which I have noted.

The application is brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 3 A, 1A, 1B,3 and 3A of the Civil Procedure Act. The requirements under Order 42 Rule 6 are clear. In this particular case judgment was supposed to have been delivered upon notice given by the trial court. However, this was not done and when it was eventually delivered on 5

th

May, 2020 the applicant was not present and had no notice of the said delivery. This application was subsequently made about five months thereafter. From the grounds set out and the affidavit in support thereof the delay has been satisfactorily explained.

The next issues to consider is whether or not substantial loss may be visited upon the applicant in the event the order of stay is not granted. The applicant has stated that the 1

st

respondent’s income is unknown and that he is apprehensive he will not be in a position to refund the decretal sum if paid in the event the appeal succeeds. He is also ready to furnish security by depositing half of the decretal sum of Kshs. 125,000/= pending the hearing of the appeal.

Where any doubt is raised as to the respondent’s inability to refund any money paid in the execution of a decree, the burden shifts to such a respondent to prove that such an allegation may not be justified. Paragraph 6 of the replying affidavit sworn by Roselyn Kihara aforesaid has allayed the applicant’s concern in respect of substantial loss.

It is stated there that the 1

st

respondent was insured was ICEA Lion Limited, and the suit was brought on its behalf under subrogation rights. The said company is a listed company and has the means to meet the judgment sum if the appeal is allowed. Since the fear of substantial loss is key to applications of this nature, and that fear having been diminished by the insurers of the 1

st

respondent, there is no reason why the 1

st

respondent should be denied enjoyment of the fruits of his Judgment.

I am persuaded that the application may not be allowed without resultant injustice on the part of the 1

st

respondent. Accordingly, the application is dismissed. The costs shall abide by the result of the appeal.

Dated, Signed and Delivered at Nairobi this 27

th

day of May, 2021.

A. MBOGHOLI MSAGHA

JUDGE

In the presence of:

Mr. Muhuni for the Applicant

Ms. Obwori for the 1

st

Respondent

N/A for the 2

nd

Respondent