Endavour Instrument Africa Ltd v Peter Mong’ale Nzanga & another [2020] eKLR Case Summary

Court
High Court of Kenya at Kitui
Category
Civil
Judge(s)
R. K. Limo
Judgment Date
October 21, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Endavour Instrument Africa Ltd v Peter Mong’ale Nzanga & another [2020] eKLR


1. Case Information:
- Name of the Case: Endeavour Instrument Africa Ltd v. Peter Mong’ale Nzanga & Paulier Mwikali Peter
- Case Number: Civil Appeal Number 59 of 2019
- Court: High Court of Kenya at Kitui
- Date Delivered: 21st October 2020
- Category of Law: Civil
- Judge(s): R. K. Limo
- Country: Kenya

2. Questions Presented:
The central legal issues before the court include whether the Appellant, Endeavour Instrument Africa Ltd, has demonstrated sufficient grounds for a stay of execution of the judgment delivered on 26th September 2019, pending the determination of its appeal. Specifically, the court must assess if the Applicant will suffer substantial loss if the stay is not granted and whether the application was made without delay.

3. Facts of the Case:
The Appellant, Endeavour Instrument Africa Ltd, was dissatisfied with a judgment from the Mutomo PMCC No. 24 of 2019, where the Respondents were awarded Kshs. 1,270,736 for damages related to pain and suffering, loss of expectation of life, loss of dependency, and special damages. The Appellant sought a stay of execution of this judgment, claiming that executing the judgment would cause irreparable harm and that the appeal raised triable issues. The Respondents, on the other hand, contended that the Appellant’s application was defective and made in bad faith, arguing that the appeal had no chance of success.

4. Procedural History:
The Appellant filed a Notice of Motion on 17th October 2019, seeking a stay of execution of the trial court's judgment. The Respondents opposed the application, arguing it did not meet the conditions for a stay as set out in Order 42 Rule 6(2) of the Civil Procedure Rules. The court considered both the application and the response from the Respondents, ultimately ruling on the merits of the stay request.

5. Analysis:
- Rules: The court examined the provisions of the Civil Procedure Act and the Civil Procedure Rules, particularly Order 42 Rule 6, which outlines the conditions under which a stay of execution may be granted. The rule requires the Applicant to demonstrate substantial loss, that the application was made without delay, and that security has been provided.
- Case Law: The court referenced previous cases, including Reliance Bank Ltd v. Norlake Investments Ltd (2002) and Focin Motorcycle Company Ltd v. Ann Wambui & Another (2018), to support its analysis of substantial loss and the necessity of demonstrating an arguable appeal. The Respondents cited Antoine Ndiaye v. African Virtual University [2015] and Winfred Nyauwa Maina v. Peterson Onyiengo Gichana [2015] to argue against the grant of a stay.
- Application: The court found that the Appellant had established a prima facie case for a stay by demonstrating that the appeal raised triable issues and that substantial loss could occur if execution proceeded. The court noted the Respondents had not contested the claim that they were unlikely to refund the awarded amount if the appeal succeeded. The court also determined that the application was made without delay and that security had been offered.

6. Conclusion:
The court granted the Appellant a conditional stay of execution, requiring the Appellant to pay half of the decretal amount to the Respondents within 21 days and to deposit the other half in a joint interest-earning account. The court ordered the Appellant to expedite the appeal process, setting a timeline for filing the record of appeal.

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

8. Summary:
The High Court of Kenya granted a conditional stay of execution in favor of Endeavour Instrument Africa Ltd, allowing the company to appeal the judgment awarded to the Respondents. The ruling underscores the importance of demonstrating substantial loss and the necessity for timely applications in civil proceedings, while also highlighting the court's discretion in balancing the interests of both parties. The decision has significant implications for future cases involving stay applications and the assessment of damages in civil claims.

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