Daniel Kahiga & another v Janet Jeruto Tolong & another [2020] eKLR Case Summary

Court
High Court of Kenya at Eldoret
Category
Civil
Judge(s)
Olga Sewe
Judgment Date
October 07, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Daniel Kahiga & another v Janet Jeruto Tolong & another [2020] eKLR, highlighting key legal principles and implications. Perfect for legal research and understanding judicial decisions.

Case Brief: Daniel Kahiga & another v Janet Jeruto Tolong & another [2020] eKLR

1. Case Information:
- Name of the Case: Daniel Kahiga & Shadrack Sakwa Juma v. Janet Jeruto Tolong & Michael Chepkwony (suing as the legal representatives of the estate of Maureen Jepkoech Chepkwony, Deceased)
- Case Number: Civil Appeal No. 87 of 2017
- Court: High Court of Kenya at Eldoret
- Date Delivered: 7th October 2020
- Category of Law: Civil
- Judge(s): Olga Sewe
- Country: Kenya

2. Questions Presented:
The court must resolve the following legal issues:
- Whether the appellants are likely to suffer substantial loss if the application for stay of execution is not granted.
- Whether the intended appeal shall be rendered nugatory if the application for stay is not granted.
- Whether the application for stay was made without undue delay.
- Whether sufficient security has been offered for the due performance of the decree.

3. Facts of the Case:
The appellants, Daniel Kahiga and Shadrack Sakwa Juma, were involved in a civil suit where the respondents, Janet Jeruto Tolog and Michael Chepkwony, represented the estate of the deceased Maureen Jepkoech Chepkwony. The lower court awarded a sum of Kshs. 11,870,289, which was later revised to Kshs. 9,296,289 upon appeal. The appellants filed a second appeal and sought a stay of execution of the judgment pending the determination of their appeal, fearing substantial loss if the decree was executed.

4. Procedural History:
The appellants filed a Notice of Motion on 13th February 2020 seeking a stay of execution of the judgment. The application was supported by an affidavit from Daniel Kahiga, asserting that execution would lead to irreparable loss. The respondents opposed the application, arguing that the security offered was inadequate and that the appellants had not met the criteria for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The matter was subsequently canvassed through written submissions.

5. Analysis:
- Rules: The application was made under Sections 1A, 1B, and 3A of the Civil Procedure Act, along with Order 22 Rule 22, Order 42 Rule 6(1) and (2), and Order 51 Rule 1 of the Civil Procedure Rules, 2010. Order 42 Rule 6 outlines the conditions under which a court may grant a stay of execution pending appeal.
- Case Law: The court referenced several cases to illustrate the principles governing stay applications, including *Machira T/A Machira & Co. Advocates v. East African Standard (No. 2)*, which emphasizes the right of a successful party to the fruits of their judgment, and *National Industrial Credit Bank Ltd v. Aquinas Francis Wasike & Another*, which discusses the burden of proof regarding the inability of the respondent to repay a decretal sum.
- Application: The court found that the appellants had a genuine fear of suffering substantial loss if the decree was executed, as the respondents did not provide evidence of their ability to repay the amount if the appeal succeeded. The court acknowledged the substantial nature of the decretal sum and ruled that the appellants had offered sufficient security by proposing to deposit half of the outstanding amount in a joint interest-earning account.

6. Conclusion:
The court granted the application for a stay of execution, allowing the appellants to stay the execution of the decree pending the hearing of their appeal. The court required the appellants to deposit half of the outstanding decretal sum in a joint interest-earning account as a condition for the stay, balancing the interests of both parties.

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

8. Summary:
The High Court of Kenya ruled in favor of the appellants by granting a stay of execution of the judgment pending the determination of their appeal. The decision underscored the importance of ensuring that a party does not suffer undue loss while also recognizing the rights of a successful litigant to receive the benefits of a judgment. This case highlights the complexities involved in stay applications and the necessity for parties to provide adequate evidence regarding their financial capabilities.

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