Please Wait. Searching ...
|Case Number:||Civil Appeal 72 of 2011|
|Parties:||Gladwell Wangechi Kibiru T/A Santa Libera v Lady Kathleen Blackburn|
|Date Delivered:||17 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Gladwell Wangechi Kibiru T/A Santa Libera v Lady Kathleen Blackburn  eKLR|
|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
CIVIL APPEAL NO. 72 OF 2011
GLADWELL WANGECHI KIBIRU
T/A SANTA LIBERA …………………………………………….. APPELLANT
V E R S U S
LADY KATHLEEN BLACKBURN ……………………………… RESPONDENT
“Madzayo Mrima & Co.
RE: MOMBASA C. M. C. C NO. 1078 OF 2006
GLADWELL KIBIRU T/A SANTA LIBERA –VERSUS-
LORD MELVYN JOHN BLACKBURN & ANOTHER
We refer to the above and the telephone conversation this morning.
As you are aware the ruling herein was delivered in the absence of both parties. We came to know of the ruling on 29th October, 2012 through your letter.
Our request is for you to accommodate our client by extending the period within which to deposit the decretal sum by 21 days so that we can open the account and deposit the sum on or before 26th November, 2012.
Kindly confirm to us that you will accommodate our client.
MURAYA WACHIRA ADVOCATES
D. K. WACHIRA”
in part provides as follows-
“… Whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”
Court to seek stay of execution whether or not such an application had or had not been granted by the Chief Magistrate's Court.
should bear in mind the provisions of Order 42 Rule 6(2). By that rule the Appellant is required to satisfy the Court that if stay of execution is not granted, she will suffer substantial loss. She is also required by that rule to prove that her application for stay was brought without undue delay. As stated before she has provided security by her immovable property. She therefore has met the third requirement under that Rule.
that she is apprehensive that the Respondent may not refund the decretal sum if she leaves the jurisdiction of this Court since she is not
a Kenyan citizen. The Respondent in reply to that submission stated in
her replying affidavit that the money would be secure because it would be in the joint accounts of the Advocates.
order her to deposit the decretal amount into an account could lead to the collapse of her business. The Appellant therefore does not allege that she does not have funds totalling the decretal sum. Rather, her concerns seem to be that such funds would be tied up in an interest earning account and would not therefore be benefiting her business.
Appellant and the Respondent that the Appellant should provide a bank guarantee for the payment of decretal sum when called upon to do so. That would ensure that the Respondent's judgment would be secure and that the Appellant's business would not be adversely affected by a deposit. In the case M/S PORTREITZ MATERNITY -VS- JAMES KARANGA KABIA CIVIL APPEAL NO. 63 OF 1997 the Court discussed the need to balance the interest of the Appellant and the Respondent. The Court stated-
“That right of appeal must be balanced against an equally weighty right, that of the Plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depreving the Plaintiff of that right.”
Chief Magistrate's Court delivered its Ruling on the application for review on 15th May 2013. The Appellant filed the present application on 24th June 2013. I find that there was no inordinate delay on the part of the Appellant that could defeat her application.
security for the due performance of the decree was not candid. This is because before the Chief Magistrate's Court she offered a Title No. CR 30864. This Court does not know the value of that property. When however she made the present application before this Court she offered another property as security namely Plot LR No. 2025/24/KILIFI. This latter property is only valued at Kshs. 2.5 million. The amount due in the Chief Magistrate's Court as at 14th June 2013 was Kshs. 4,408,730/-. This is evidence from the Notice to Show Cause issued by that Court. This Court therefore rejects the Appellant's offer of that immovable property. The value of that property does not match the amount due in the lower Court's judgment. In reaching my decision in respect of that property I am guided by the case THE STANDARD BANK LTD -VS- G. N. KAGIA T/A KAGIA & CO. ADVOCATES CIVIL APPLICATION NO. NAI. 193 OF 2003 (unreported) where the Court of Appeal stated-
“So the amount that the Respondent is ultimately entitled to is not settled and will only be ascertained after the determination of the appeal. Although the Respondent has several pieces of land, they may depreciate in value or may be disposed of or it may be difficult to sell them by the time the appeal is determined. If the Applicant’s appeal ultimately succeeds, either wholly or partially, such success will not be totally effectual if the Applicant will not easily recover the money it paid and if it has to institute other civil proceedings to recover the money. Such an eventuality should in the interest of justice be taken into account.”
Dated and delivered at Mombasa this 17th day of October, 2013.