[2023] KEHC 25526 (KLR)

Angaya & another v Muema & another (Suing as the administrators and legal representatives of the Estate of Brian Mwanza Muli (Deceased)) (Civil Appeal E878 of 2022) [2023] KEHC 25526 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25526 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E878 of 2022

JN Mulwa, J

November 16, 2023

Between

Sehm Atulo Angaya

1st Appellant

Isack Ashivara

2nd Appellant

and

Ruth Mbula Muema

1st Respondent

Kaiva Muli

2nd Respondent

Suing as the administrators and legal representatives of the Estate of Brian Mwanza Muli (Deceased)

Ruling

1. The trial court’s Judgment was delivered on September 30, 2022 in Milimani CMCC No. 1058 of 2020 awarding the sum of Kes 4,703,550/= plus interest. The appellants being dissatisfied lodged an appeal within the statutory period. By the application dated November 11, 2022, the appellant seeks orders of stay of execution pending hearing and determination of the Appeal. In have considered the supporting affidavit.

2. The appellants are ready and willing to offer security in terms of a Bank guarantee, to be issued by Family Bank Limited. The supporting affidavit was sworn by one Isack Ashivara the 2nd Appellant. Provisions of order 42 rule 6 of the Civil Procedure Rules have been invoked.

3. The respondent is not strictly opposed to the orders sought as reading the replying affidavit sworn on March 29, 2023 by the 1st respondent confirms. The decretal sum is Kes 4,703,550/- as confirmed by the respondent who has urged the Court ought to direct that half of the decretal sum be released to the respondent and the other half be deposited as security as the court may direct.

4. By the above, the only issue for court’s determination is the sufficient security for the due performance of the decree.Order 42 rule 6(2) Civil Procedure Rules provides the condition that an appellant ought to comply with for grant of a stay order pending appeal being trite that an appeal des no operate as a stay if the Shell Ltd v Kiburu & another (1986) KLR 410; Tiny Bees Credit (K) Ltd v Patrick Macharia Nderitu & another (2022) eKLR among others.An applicant must show that: -a.The application was filed within reasonable period.b.That substantial loss shall be suffered by the applicant if the order is denied and the appeal may be rendered nugatory; andc.Sufficient security for the due performance of the decree is provided.

5. The appellant has proposed security by way of a bank guarantee of 50% of the decretal sum. In the case of National Industrial Credit Bank Ltd v Aquino’s Francis Wasike and another (2006) eKLR, the court rendered that it is upon the applicant to prove substantial loss either through difficulty in satisfying the decree or loss occasioned by the inability by the adverse party to refund if the appeal succeeds.

6. I am satisfied that the security offered by the appellant in my view is sufficient. I therefore allow the application dated 11/11/2022 subject to the appellant.a.Releasing to the respondent Kes 2,351,775. 00 being 50% of the decretal sum/=within 45 days; as hereunder:b.The sum of Kes 1,401,890/- deposited into court as security by the appellant shall be released to the respondent. The appellant shall topup, by paying to the respondent a further sum of Kes 949,885/= to make the 50% within the time frame stated at (a) above.c.The balance (50%) being Kes 2,351,775/= shall be secured a bank guarantee from Family Bank Limited in favour of the respondent’s advocates J. K. Mwalimu and Company Advocates within 45 days.d.In default of (a), (b) and (c) above, the stay orders shall lapse automatically.e.The record of appeal shall be filed and served within 45 days.f.The applicants shall pay costs of the application to the respondents.g.The record of appeal shall be filed within 60 days. and directions to be taken on 29/2/2024.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 16TH DAY OF NOVEMBER, 2023. JANET MULWAJUDGE