[2017] KEHC 1263 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO 81OF 2017

BENJAMIN MUSYOKI MUSAU.............................1ST APPELLANT

TIMOTHY MUTHIANI MUSAU..............................2ND APPELLANT

VERSUS

JOHN MBURU MUHIU…….................................1ST RESPONDENT

FRANCIS GABBY THUKU..................................2ND RESPONDENT

RULING

The Application

The Appellant have appealed against a ruling delivered on 12th June 2017 in Machakos CMCC No. 540 of 2004- John Mburu Muhiu & Francis Gabby Thuku vs Benjamin Musyoki Musau and Timothy Muthiani Musauby way of a Memorandum of Appeal filed herein on 13th June 2017. The trial Court in its ruling dismissed the Appellants application for stay of execution and setting aside of a judgment.

The Appellants subsequently also filed an application herein by way of a Notice of Motion dated 14th June 2017 seeking orders of stay of execution of the trial Court’s decree in Machakos CMCC No. 540 of 2004- John Mburu Muhiu & Francis Gabby Thuku vs Benjamin Musyoki Musau and Timothy Muthiani Musau, pending the hearing and determination of the appeal herein.

The application is supported by an affidavit sworn on the same date by the Leonard Nzioka Ngolya, the Appellants’ Advocate, and is premised on the grounds that there is imminent threat of execution, as the Appellant has been proclaimed against, and that unless the stay is granted, the appeal will be rendered nugatory and the Appellant will suffer substantial loss. It was averred by the Appellant that the Respondents’ financial means are unknown, and it will be difficult to recover any money from them in the event the appeal succeeds. They attached a proclamation notice showing the amount sought to be satisfied as Kshs 354,580/=.

The Appellants’ Advocate also filed written submissions dated 4th July 2017, wherein he detailed out the basis of the Appellants’ appeal to demonstrate that they have a good arguable appeal, and that they stand to suffer substantial loss if the stay is not granted, as they would be forced to settle a claim in whose trial they did not participate in. It was also averred that in the circumstances it would be unfair to require them to provide security at this stage.

The Response

In response, the Respondents advocates on record, Nderu and Ngaruni Advocates, filed Grounds of Opposition dated 23rd June 2017 and a replying affidavit sworn on the same date by the 1st Respondent. It was stated therein that the application ought to be dismissed as it is frivolous and lacks merit and does not meet the threshold of granting stay of execution that is required by Order 42 Rule 6 of the Civil Procedure Rules.

The Respondents averred that they are persons of means and are willing to reimburse the decretal sum in the event that the appeal succeeds, and they attached a copy of the 1st Respondent’s bank statements in support of their averments. Further, that the Appellants have not demonstrated the loss they will suffer. The Respondents urged that should the Court grant the stay of execution, the Appellants be ordered to release to them half of the judgment sum together with costs and interest, and to deposit the other half in a joint interest earning account within 7 days.

The Respondent’s advocate, namely Mr. Nderu, relied on the said Grounds of Opposition and Replying affidavit in oral submissions he made in Court during the hearing of the application on 1st August 2017, and cited the decision in Supa Hauliers Ltd vs David Masinde Musungu(2015) e KLR in support of their arguments.

The Issues and Determination

I have read and carefully considered the pleadings and submissions made by the parties herein. The issue before the Court is whether the decree issued in Machakos CMCC No. 540 of 2004- John Mburu Muhiu & Francis Gabby Thuku vs Benjamin Musyoki Musau and Timothy Muthiani Musaushould be stayed pending the hearing of the appeal. Stay of execution pending appeal is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules which provides as follows:

“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 subrule (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.”

For a stay of execution to be granted, an applicant must satisfy the conditions stated in Order 42 rule 6 (2) to the effect that:

(a) the application for stay must be made without unreasonable delay from the date of the decree or order to be stayed;

(b) the applicant must show that he will suffer substantial loss if the orders of stay is not granted, and

(c) the applicant offers such security as the court may order to bind him to satisfy any ultimate orders the court may make binding upon him.

The essence of an application for stay pending appeal is to preserve the subject matter of litigation, to avoid a situation where a successful appellant only gets a paper judgment, while at the same time balancing the rights of the parties.

In the present application, this Court notes that judgment was delivered in the lower court on 12th June 2017; the Memorandum of Appeal was filed herein on 13th June 2017 while the instant application was filed on 15th June 2017. It is evident that the Appellants moved with haste and there was therefore no inordinate delay in filing the application.

On the fulfillment of the second condition, the Appellants need to show the specific loss or prejudice he will suffer. They have in this respect argued that may be condemned to pay the judgment sum arising from a trial they were not involved in, and the Respondent may not be able to refund them the amount paid in the event that the Appellant’s appeal succeeds. They attached the proclamation notice against them as evidence. This averment in my view is sufficient and specific enough as to the substantial loss that the Appellants will suffer if the application is not granted, as they have demonstrated the loss they are likely to suffer over and above the satisfaction of the judgment sum.

The Respondent countered this argument by stating that they are able to refund the said sum if the appeal succeeds, and provided evidence of their financial status. In addition I also note that the Appellants were not willing to furnish security for the judgment sum, which is a condition for stay of execution, and also given that the judgment in favour of the Respondents has not been overturned.

Accordingly, the orders that commend themselves to me arising from the foregoing is that the Appellants’ Notice of Motion dated 14th June 2017 is allowed on the following terms and conditions:

There shall be a stay of execution of the decree issued in Machakos CMCC No. 540 of 2004- John Mburu Muhiu & Francis Gabby Thuku vs Benjamin Musyoki Musau and Timothy Muthiani Musaupending the hearing and determination of the Appellants’ appeal only on condition that the Appellants shall deposit the sum of Kshs 355,000/= in an interest earning account in the joint names of the Appellants’ and Respondents’ Advocates on record.

The said deposit ordered in Order 1 hereinabove shall be made within 30 days of the date of this ruling, failing which the stay orders herein shall stand vacated.

The costs of the Notice of Motion dated 14th June 2017 shall follow the costs of the Appeal.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 3rd day of October, 2017.

P. NYAMWEYA

JUDGE