[2022] KEHC 11640 (KLR)

Abdulahi v Nyaboke & 2 others (Civil Appeal 149 of 2021) [2022] KEHC 11640 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11640 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 149 of 2021

EKO Ogola, J

May 17, 2022

Between

Mohammed Abdulahi

Appellant

and

Josephine Nyaboke

1st Respondent

Francis Omari Ogaro

2nd Respondent

Peter Ngunjin

3rd Respondent

Ruling

1. By a notice of motion application dated November 16, 2021 the applicant prays for orders of stay of execution of the warrants of attachment dated May 18, 2021 pending the hearing and determination of the appeal.

Applicant’s case 2. The 1st respondent filed a suit in the chief magistrate’s court seeking the following orders; Special damages of Kshs 16,600/-

General damages for pain, suffering, loss of amenities, special damages and future expenses.

Costs of the suit and interest.

3. The suit arose from an accident that occurred on June 1, 2019 along the Webuye Eldoret road at Maili Nne area. The 1st respondent was a pillion passenger on the material date and claimed that the 2nd respondent drove motor vehicle registration number KXX XXXJ negligently and caused it to knock down the motor cycle the 1st respondent was being carried on as a passenger. He suffered injury and loss and blamed the 1st respondent.

4. Liability was apportioned at 80/20% in favour of the plaintiff by consent and quantum was awarded at Kshs 236,880/- less contributory negligence. The applicant then filed the present application and the same is based on the grounds set out in the application and the supporting affidavit.

5. The applicant filed submissions on November 24, 2021.

6. The applicant submitted that the rule for granting stay of execution was well laid out in Butt v Rent Restriction Tribunal (1982) KLR 147 where the court gave guidance on how a court should exercise this discretion. The court held;‘1. The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion must be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its jurisdiction whether to grant (or) refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under order XLI rule 4 (2) (b) of theCivil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.

7. He submitted that the application is grounded on the apprehension that if the execution of the proclamation dated May 18, 2021 proceeds with respect to the items described in the appellant’s notice of objection dated May 19, 2021, the applicant will suffer substantial loss and his appeal will be rendered nugatory. He relied on the case of Charles Irungu v Elizabeth Kalunda Wakano (2021) eKLRwhere the court held as follows on the issue of substantial loss;‘The court is of the view that given the substantial amounts in the decree, and in the absence of proof of the respondent’s financial means, it may well be that if the decretal sum is paid out, the applicant may be unable to recover the sums in the event of the appeal succeeding, thereby rendering the appeal nugatory. As stated in the Shell case, substantial loss is what must be prevented.’

8. As regards the issue of delay, the applicant submitted that the ruling which he wishes to appeal was delivered on November 12, 2021 and the application was filed on November 16, 2021, hence, there is no inordinate delay in bringing the application.

9. The applicant submitted that the court must strive to strike a balance between the competing interests of the parties to an appeal. It must be noted that the appellant was not a party to the suit that led to the proclamation of goods in his shop. Neither is there any relationship between the judgment debtor and the appellant. The circumstances of this case are such that stay is warranted to grant the appellant an opportunity to prove that his stock in trade is not liable for execution because he was not a party to the dispute that culminated in the execution process.

1st Respondent’s case 10. The 1st respondent filed submissions on December 10, 2021.

11. The application is opposed by the 1st respondent who was successful in Eldoret Civil Suit No 691 of 2018 – Josephine Nyaboke vs Francis Omari Ogaro and Peter Ngunjini. She opposed the application on the grounds that it is made in bad faith and with the sole aim of delaying the enjoyment of fruits in her judgment. Further, that the application falls short of the threshold for grant of the orders of stay of execution pending appeal as provided under order 42 rule 6 of the Civil Procedure Rules.

12. The respondents submitted that the conditions set out in order 42 rule 6 (1) must be met simultaneously before an order for stay of execution can be granted. They cited the case of Civil Appeal No 107 of 2015 – Masisi Mwita v Damaris Wanjiku Njeri (2016) eKLRwhere the court held as follows;The application must meet the criteria set out in precedents and the criteria is best captured in the case of Halal & Another vs Thompson & Turpin Ltd where theCourtof Appeal(Gicheru JA, Chesoni & Cockar Ag. JA) held that;‘The High Court’s discretion to order stay of execution of its order or decree is fettered by three conditions namely: - Sufficient cause, substantial loss would ensue from a refusal to grant stay, the applicant must furnish security, the application must be made without unreasonable delay.In addition, the applicant must demonstrate that the intended appeal will be rendered nugatory of stay is not granted as was held in Hassan Guyo Wakalo vs Straman EA Ltd (2013) as follows: -In addition, the applicant must prove that if the orders sought are not granted and his appeal eventually succeeds, then the same shall have been rendered nugatory.’These twin principles go hand in hand and failure to prove one dislodges the other.’

13. They submitted that no irreparable loss would be suffered by the applicant that the applicant has failed to demonstrate the substantial loss and how the appeal would be rendered nugatory as required in law. They cited the case of Sewankambo Dickson vs Ziwa Abby HCT-00-CC MA 0178 of 2005 cited in Justus Gituma & 5 Others v Daniel Kimathi & 2 Others; K-Rep Bank (interested party) (2021) eKLR where it was held that;‘Substantial loss is a qualitative concept. It refers to any loss, great or small, that is real worth or value, as distinguished from a loss without value or loss that is merely normal, insistence on a policy or practice that mandates security, for the entire decretal amount is likely to stifle possible appeals – especially in a commercial court, such as ours, where the underlying transactions typically tend to lead to colossal decretal amounts.’They also cited the case of David Kipkoskei Kimeli v Titus Barmasai (2019) eKLR where the Hon Dr M Odeny, while quoting the case of Machira t/a Machira & Co Advocates v East African Standard (No 2) (2002) KLR 63, held as follows on substantial loss;‘In this kind of application for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay’

14. The respondents conceded that the application was filed without undue delay.

15. They further submitted that the applicant through an application dated May 19, 2021 instituted objection proceedings, at the trial court, where the appellant failed to prove ownership of the attached goods and his application was dismissed.

16. It is the respondent’s case that the applicant has not met any of the requirements envisaged in order 42 rule 6 (2) of the Civil Procedure Rules 2010. The application is defective and has no basis. It should be dismissed with costs.

Issues for determination whether the stay of execution should be granted 17. Order 42 rule 6(1) of the Civil Procedure Rules provides as follows:(2)No order for stay of execution shall be made under sub rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(3)Notwithstanding anything contained in sub rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in sub rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

Whether the applicant may suffer substantial loss 18. InStanley Karanja Wainaina & Another v Ridon Ayangu Mutubwa Nairobi HCCA 427/2015 it was stated:'It is not enough for the respondent to merely swear that fact in an affidavit without going further to provide evidence of his liquidity. In my view the respondent has evidential burden to show that he has the resources since this is a matter that is purely within his knowledge. The Court of Appeal while dealing with a similar situation in National Industrial Credit Bank Limited -v- Aquinas Francis Wasike and Another (UR) CA 238/2005 stated: -This court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by the respondent or lack of them. Once an applicant expresses that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.'

19. The applicant has merely stated that he will undergo substantial loss if stay is not granted. He does not state or show how the loss will be substantial. I find that this limb has failed.

20. It is trite law that all the requirements of order 42 rule 6(2) must be met before an order for stay is granted. I shall however analyse the same.

Whether the application was made without unreasonable delay 21. The ruling to be appealed against was delivered on November 12, 2021 and the application herein filed on November 16, 2021. It is my finding that the application was brought without unreasonable delay.

Security 22. The applicant has not made any offers on security. In Arun C Sharma v Ashana Raikundalia T/A Rairundalia & Co Advocates the court stated that:'The purpose of the security needed under order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.'

23. I have noted that the applicant has not made any effort to show that the goods in question belong to him, or to show any connection with the attached goods. He has failed to discharge the burden that the law bestows upon him as an objector. This application lacks in merit and the same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH OF MAY 2022. E.K. OGOLAJUDGE