Samson Kariuki Njengi & another v Tom Kelvin Mogeni t/a Mogeni & Co. Advocates [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Milimani Law Courts, Commercial and Tax Division
Category
Civil
Judge(s)
F. Tuiyott
Judgment Date
October 05, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Samson Kariuki Njengi & another v Tom Kelvin Mogeni t/a Mogeni & Co. Advocates [2020] eKLR case summary. Discover key insights and implications from this important legal decision.

Case Brief: Samson Kariuki Njengi & another v Tom Kelvin Mogeni t/a Mogeni & Co. Advocates [2020] eKLR

1. Case Information:
- Name of the Case: Samson Kariuki Njengi & Susan Waitherero Kariuki v. Tom Kelvin Mogeni T/A Mogeni & Co. Advocates
- Case Number: HCCC. NO 170 OF 2017 (O.S)
- Court: High Court of Kenya at Nairobi, Milimani Commercial Courts, Commercial & Tax Division
- Date Delivered: 5th October 2020
- Category of Law: Civil
- Judge(s): F. Tuiyott
- Country: Kenya

2. Questions Presented:
The central legal issue presented to the court was whether the Defendant, Tom Kelvin Mogeni, demonstrated substantial loss that would warrant a stay of execution of the judgment which ordered him to pay Ksh 3,184,000.00 to the Plaintiffs.

3. Facts of the Case:
The Plaintiffs, Samson Kariuki Njengi and Susan Waitherero Kariuki, initiated a lawsuit against the Defendant, Tom Kelvin Mogeni, who operates as Mogeni & Co. Advocates. The case arose from a transaction involving the sale of property, where the Defendant was holding funds intended for the Plaintiffs. The court found that the Defendant held Ksh 3,184,000.00 belonging to the Plaintiffs and ordered its release along with interest and costs. Following the judgment, the Defendant filed a Notice of Appeal and sought a stay of execution, claiming potential substantial loss if the order was executed.

4. Procedural History:
The case progressed through the High Court, culminating in a judgment delivered on 29th April 2020, which favored the Plaintiffs. The Defendant subsequently filed a Notice of Appeal on 1st May 2020 and a Motion on 5th June 2020, seeking a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The court heard arguments from both sides regarding the likelihood of substantial loss to the Defendant if the stay was not granted.

5. Analysis:
- Rules: The court considered Order 42 Rule 6 of the Civil Procedure Rules, which stipulates conditions for granting a stay of execution, specifically the need for the applicant to demonstrate substantial loss and provide security for the due performance of the decree.
- Case Law: The court referenced Daniel Chebutuk Rotich & 2 Others v Emirates Airlines – Civil Case No. 368 of 2001, where “substantial loss” was defined as a relative term assessed by the consequences an applicant may suffer if the stay is not granted. This precedent served as a benchmark for evaluating the Defendant’s claims of potential loss.
- Application: The court analyzed the Defendant's claims of substantial loss, which were based on the assertion that releasing the funds would expose him to professional misconduct claims. However, the court found these claims speculative and unsupported by any evidence of the Plaintiffs’ inability to repay should the appeal succeed. The Defendant's readiness to deposit the decretal sum in a joint account was also considered, but the court concluded that this did not demonstrate substantial loss.

6. Conclusion:
The court ruled against the Defendant's Motion for a stay of execution, concluding that he had not demonstrated a likelihood of suffering substantial loss. The court dismissed the Motion with costs, emphasizing that the Plaintiffs had a valid money decree in their favor.

7. Dissent:
There were no dissenting opinions noted in the ruling, as the decision was delivered by a single judge.

8. Summary:
The High Court of Kenya ruled in favor of the Plaintiffs, ordering the Defendant to pay Ksh 3,184,000.00. The Defendant's attempt to stay execution was denied due to a failure to demonstrate substantial loss, reinforcing the principle that speculative claims are insufficient to warrant a stay. This case underscores the importance of solid evidence when seeking relief from court orders and clarifies the interpretation of substantial loss within the context of civil procedure.

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