[2022] KEHC 10408 (KLR)

Bett v Ndege Chai Co-operative Savings Credit Co-operative Society ltd (Civil Appeal E015 of 2022) [2022] KEHC 10408 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10408 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E015 of 2022

AN Ongeri, J

June 17, 2022

Between

Clara Chepngetich Bett

Appellant

and

Ndege Chai Co-operative Savings Credit Co-operative Society ltd

Respondent

Ruling

1. The application coming for consideration in this ruling is the notice of motion dated 10/3/2022 seeking stay of execution pending appeal and setting aside of the Exparte Judgment dated 08/02/2022.

2. The application is based on the ground on the face of it and supported by the affidavit of the applicant Clara Chepngetich Bettof even date.

3. It is deposed as follows in the supporting affidavit.i.That the learned trial magistrate summarily dismissed her application seeking to arrest the delivery of judgment, as being overtaken by events;ii.That the learned trial magistrate, upon summarily dismissing her application, proceeded to deliver judgment whereas the proceedings giving rise to judgment were exparte;iii.That on the date the matter was to proceed for hearing, the applicant arrived in court and found the plaintiff’s first witness testifying;iv.That all the plaintiff’s witnesses testified without the learned trial magistrate giving the applicant an opportunity to cross examine;v.That the plaintiff closed their case and the trial court closed the defence case without granting the applicant an opportunity to tender her evidence;vi.That she filed an application seeking to set aside the said proceedings, which the trial magistrate dismissed as it had errors of the date of the proceedings and the trial magistrate dismissed the application seeking leave to amend the date of the subject proceedings;vii.That she filed a proper application for correct proceedings, which application the trial magistrate did not consider despite the respondent confirming as duly filed and served upon them;viii.That she was the litigant sued and she was in court and the court should have therefore given her an opportunity to defend her case.

4. The respondent filed a replying affidavit dated 11/4/2022 sworn by Gilbert Bett, the CEO of the respondent company in which he deposed as follows:-i.That the applicant’s application is a continuation of the delaying antics employed by the applicant in the lower court, to ensure that the matter is never heard and determined and is meant to deny the respondent the fruits of its judgment since the appeal is devoid of merit;ii.That the application is unmerited and fails the ingredients and principles for stay of execution pursuant to order 42 of the Civil Procedure Rules, 2010;iii.That the essence of stay of execution is to preserve the subject matter in dispute and to safeguard the rights of the appellant if the appeal succeeds;iv.That the applicant has not shown the loss, injury or damage she will suffer if the order of stay is not granted and further that the respondent is financially sound and it can indemnify the applicant if the appeal succeeds;v.That the applicant filed the appeal out of time and without seeking leave of court, hence is guilty of laches, and as such the appeal is ripe for dismissal;vi.That the applicant has unreasonably delayed in filing this application and no reason has been given to explain the delay;vii.That where the subject award is in monetary terms, the courts are less inclined to issue stay orders and further that stay orders requires that the applicant satisfies the conditions set out in order 42 including depositing the entire decretal sum and costs;viii.That the applicant has not demonstrated willingness to deposit the decretal sum and security for cost and this honorable court should order the applicant to deposit the full decretal and security for costs sum in court prior to certifying the appeal ready.

5. The parties filed written submissions as follows:-The appellant submitted that the judgment of the trial court in Kericho Cmcc no. 292 of 2015 was as a result of ex parte proceedings, as the applicant who was present in court was never given an opportunity to cross examine the respondents and also adduce her evidence and as a result, the appellant’s appeal has high chances of success.

6. The appellant submitted that article 50 of the Constitution provides to every person a right to fair hearing, and therefore the trial magistrate by shutting the appellant out of the proceedings denied the appellant access to justice and violated her right to fair hearing.

7. The appellant submitted that following the judgment of the trial court, she will be required to satisfy the decree and cost of about Kshs. 4,000,000, whereas her defence was not considered, and if the judgment is executed, the appellant will be rendered destitute and she shall suffer irreparable loss and damage.

8. The respondent on the other hand submitted that the appellant has not met the conditions precedent to grant stay of execution pending appeal which include filing the application for stay of execution orders without unreasonable delay, demonstrating that she will suffer substantial loss in the event that stay orders will not be granted and payment of security for due performance of the decree.

9. It was also submitted that the applicant’s application is a ploy to deny the respondent the fruits of its judgment and further that the prayer by the applicant seeking to set aside the judgment and decree of the trial court is premature and can only be determined upon hearing the parties.

10. The sole issue for determination is whether the Appellant should be granted stay of execution pending Appeal.

11. The legal provision which governs stay pending appeal is order 42 rule 6 which states as follows: -6. Stay in case of appeal:(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.(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 subrule (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 subrule (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.

12. In Antoine Ndiayevs. African Virtual University[2015] eKLR, the court stated as follows:- “ The relief of stay of execution pending appeal is governed by order 42 rule 6 of the Civil Procedure Rules. The relief is discretionary although, as it has been said often, the discretion must be exercised judicially, that is to say, judiciously and upon defined principles of law; not capriciously or whimsically. Therefore, stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules, that:a)The application is brought without undue delay;b)The court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered; andc)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.”

13. The court in RWW vs. EKW [2019] eKLR, addressed itself on the purpose of stay of execution orders pending appeal as follows: “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

14. I find that the prayer seeking to set aside the Exparte Judgment entered on 08/02/2022 cannot be granted at this stage as it would amount to determining the appeal before hearing the parties.

15. I find that the respondent will not suffer prejudice that cannot be compensated by an award of costs.

16. I accordingly allow the application dated 10/3/2022 on the following grounds:-i.That the appeal be filed within 30 days of this date.ii.That the appellant deposits half of the decretal sum in an interest earning account held by Advocates for both parties within 60 days of this date.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 17TH DAY OF JUNE, 2022A. N. ONGERIJUDGE