[2022] KEHC 3282 (KLR)

Abiria Coaches & another v Okoth (Civil Appeal E130 of 2022) [2022] KEHC 3282 (KLR) (Civ) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3282 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E130 of 2022

JN Mulwa, J

June 16, 2022

Between

Abiria Coaches

1st Applicant

William Jandi Lugangal

2nd Applicant

and

Brian Omondi Okoth

Respondent

Ruling

1. On January 22, 2022, Hon. E. Wanjala (PM) delivered a judgment in Milimani CMCC No. 7536 of 2019 in which she awarded the Respondent herein general damages of Kshs. 520,000/= for injuries sustained in a road traffic accident, special damages of Kshs. 45,548/= plus costs and interest. The appellant preferred an appeal on quantum.

2. Consequently, the appellants approached the court by way of a Notice of Motion dated March 12, 2022 brought pursuant to Order 22 Rule 22, Order 42 Rules 4 and 6, Order 50 Rule 4, Order 51 Rule 1 of theCivil Procedure Rules, 2010, Section 3, 3A and 100 of the Civil Procedure Act and all other enabling provisions of the law. They sought a stay of execution of the judgment and decree issued on January 22, 2021 in Milimani CMCC No. 7536 of 2019 pending the hearing and determination of their Appeal herein.

3. The application was supported by the affidavit of Kelvin Ngure, the Deputy Claims Manager at Directline Assurance Company Limited who are the insurers of the 1st appellant’s motor vehicle which was involved in the accident.

4. The respondent opposed the application vide a replying affidavit sworn on May 4, 2022.

5. Notably, on March 15, 2022, Meoli J. granted the appellants a temporary stay of execution of the said judgment on condition that the appellants deposit a sum of Kshs. 350,000/- in court pending the hearing of the application inter partes. That sum was duly deposited in court as ordered.

6. The court has carefully considered the grounds set out on the body of the Motion, the facts deposed in the rival affidavits and the brief oral arguments by the parties’ respective counsel. The only issue is whether the appellants have made out a case for the grant of stay of execution pending appeal.

7. The conditions necessary for the grant of stay of execution pending appeal are laid out in Order 42 Rule 6(1) & (2) of the Civil Procedure Rules which provides that:“6. (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and 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.(2)No order for stay of execution shall be made under sub-rule (1) unless 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 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."

8. From the said provision, it is clear that in order to succeed in an application for stay of execution, an applicant must demonstrate that substantial loss may result unless the order of stay is issued; that the application has been brought without undue delay; and must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant.

9. In the instant case, I have no doubt that the present application was made without unreasonable delay. The judgment of the trial court was delivered on January 22, 2022 and the instant application was filed on March 12, 2022, just a month and eighteen days later.

10. As regards substantial loss, the appellants are apprehensive that the Respondent may levy execution against them which will render the appeal nugatory. They are also apprehensive that if the judgment sum, which they deem substantial, is paid to Respondent, they may not recover it in the event that the appeal succeeds since his financial standing is unknown. On the other hand, the Respondent contended that no material has been placed before this court to support the averment that he will be unable to refund the money as he is a businessman.

11. It is well settled that an applicant must demonstrate the substantial loss it stands to suffer if stay is not granted in order to justify keeping a decree holder out of the fruits of his or her judgment. In Kenya Shell Limited v Benjamin Karuga Kibiru & anorther[1986] eKLR, Platt JA stated thus:“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”

12. However, where an applicant expresses his apprehension about the respondent’s inability to refund the decretal sum in case the appeal is successful, the evidential burden of proof shifts to the respondent to controvert the same by way of affidavit evidence. In National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another[2006] eKLR the Court of Appeal held thus:“Once an applicant expresses a reasonable fear 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.”

13. The respondent indicated that he is a businessman to insinuate that he has the financial capacity to refund the judgment sum. However, he did not present anything to ascertain this position. I am therefore satisfied that the appellants have demonstrated that they stand to suffer substantial loss if stay of execution is not granted.

14. On provision security, the appellants stated that they are ready, willing and able to furnish reasonable security in the form of a bank guarantee. The respondent strongly opposed the use of the annexed bank guarantee stating that it is invalid as it is not witnessed by an Advocate and it will expire before the appeal is disposed of. The respondent urged that if the court is inclined to grant stay, it should direct the Appellants to release at least half of the decretal sum to him to enable him attend to urgent medical treatment for the septic degloving wound since the appeal is only on quantum.

15. The bank guarantee annexed to the appellant’s supporting affidavit from Family Bank may not secure the Respondent’s interests in view of its lifespan. It was given on August 31, 2021 and has a lifespan of twelve (12) months which is renewable. However, the court cannot bank on that since it is not privy to the relationship between the Appellants’ Insurer and its said banker hence cannot say with certainty that the bank guarantee will remain active until the appeal is determined. Notably, the court reserves the discretion to determine the extent and nature of the security to be provided hence it is not necessarily bound by what is offered by the Appellants.

16. The appeal in the instant case is only against the trial court’s assessment of quantum of damages. This means that eventually, the respondent will be entitled to part of the judgment sum given that liability is not being contested. in the premises, it is only fair that the respondent should be paid part of the money to cater for urgent medical needs as deposed in his affidavit. (SeeHarrison Mbaabu Marete v Janet Nkirote Muthomi[2021] eKLR, Indus Trading Limited & another v Charles Aricha [2021] eKLR)

17. For the foregoing reasons, the appellants’ Notice of Motion dated March 12, 2022 is allowed in the following terms:1. There shall be a stay of execution of the judgment delivered on January 22, 2022 in Milimani CMCC No. 7536 of 2019 pending appeal on condition that the Appellants remit to the Respondent half of the decretal sum and issues a bank guarantee from a reputable bank to secure the balance during the period of the appeal within 30 days from the date hereof.2. In default, the stay of execution granted herein shall automatically lapse.3. The costs of this application shall be borne by the appellants.

18. Orders accordingly.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 16THDAY OF JUNE, 2022J. N. MULWAJUDGE