Malik Boeki Company Ltd & another v Michael M. Peter [2020] eKLR Case Summary

Court
High Court of Kenya at Narok
Category
Civil
Judge(s)
J. M. Bwonwong’a
Judgment Date
October 07, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Malik Boeki Company Ltd & another v Michael M. Peter [2020] eKLR, highlighting key legal findings and implications for future cases.

Case Brief: Malik Boeki Company Ltd & another v Michael M. Peter [2020] eKLR

1. Case Information:
- Name of the Case: Malik Boeki Company Ltd & Bernard Gachungui Ndungu v. Michael M. Peter
- Case Number: Civil Appeal No 23 of 2019
- Court: High Court of Kenya at Narok
- Date Delivered: October 7, 2020
- Category of Law: Civil
- Judge(s): J. M. Bwonwong’a
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
1. Will the applicants suffer substantial loss if an order of stay of execution is not granted?
2. Do the applicants have an arguable appeal?
3. Are the applicants required to offer security for the stay of execution?
4. Was there unreasonable delay in prosecuting the application?

3. Facts of the Case:
The appellants, Malik Boeki Company Ltd and Bernard Gachungui Ndungu, sought a stay of execution of a judgment delivered by a lower court on July 30, 2019, which awarded the respondent, Michael M. Peter, a sum of Kshs 750,000. Following the judgment, the appellants applied for a stay of execution, which was initially granted for three months but lapsed on July 14, 2020. The appellants argued that without a stay, they would suffer irreparable loss as the respondent's financial status was unknown, and they were concerned about the possibility of not being able to recover the amount if the appeal succeeded.

The application was supported by an affidavit from Isabella Nyambura, a claims director at Direct Line Assurance Co. Ltd, which insured the vehicle involved in the accident leading to the claim. The respondent opposed the application, claiming it was a tactic to frustrate him from enjoying the fruits of his judgment and suggested that half of the awarded amount should be released to him while the other half be held in a joint interest-earning account.

4. Procedural History:
The case progressed through the following stages:
- Judgment in the lower court was delivered on July 30, 2019.
- The appellants filed for a stay of execution in the lower court, which was granted for three months.
- After the stay lapsed, the appellants filed an application in the High Court on July 2, 2020.
- The respondent filed a replying affidavit opposing the application.
- Both parties presented their arguments and cited relevant case law.

5. Analysis:
Rules:
The court considered the provisions of Order 22 Rule 22, Order 42 Rule 6, and Order 51 Rule 1 of the 2010 Civil Procedure Rules, along with sections 1A (1) (2) (3), 3A, and 63 (e) of the Civil Procedure Act. These statutes outline the conditions under which a stay of execution may be granted.

Case Law:
The court referenced Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365, which established that for a stay of execution to be granted, the applicant must demonstrate sufficient cause, show that substantial loss would occur if the stay is denied, furnish security, and file the application without unreasonable delay. Additionally, the court cited Musisi Mwita v Damaris Wanjiku Njeri [2016] e-KLR and Winfred Nyawira Maina v Peterson Onyiego Gichana [2015] e-KLR, which emphasized the need for cogent evidence regarding the respondent's ability to refund the decretal sum.

Application:
The court found that the appellants would suffer substantial loss if the stay was not granted, as the execution of the judgment could render their appeal nugatory. It also determined that the appellants had an arguable appeal and had not delayed unreasonably in filing their application. The court accepted the appellants' assurance to provide security for the performance of any obligations resulting from the court's decision.

6. Conclusion:
The court ruled in favor of the applicants, allowing their application for a stay of execution on the condition that they deposit the decretal sum in an interest-earning joint account within 30 days. This ruling balanced the applicants' right to appeal with the respondent's right to enjoy the fruits of his judgment.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The High Court of Kenya granted a stay of execution for the appellants, Malik Boeki Company Ltd and Bernard Gachungui Ndungu, pending the determination of their appeal against a judgment awarding the respondent Kshs 750,000. The court's decision underscored the importance of safeguarding the right to appeal while also considering the respondent's interests. The ruling emphasizes the necessity of providing security in such applications and the court's role in balancing conflicting interests.

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