[2022] KEHC 13568 (KLR)

Bidii Traders Savings Credit Group (Suing thro Its officials) Simon Kiambi Ngaruni (Secretary) & another v Kiarii & another (Civil Appeal E103 of 2021) [2022] KEHC 13568 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13568 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E103 of 2021

TW Cherere, J

October 6, 2022

Between

Bidii Traders Savings Credit Group (Suing thro Its officials) Simon Kiambi Ngaruni (Secretary)

1st Appellant

Fridah Kinya Kiambi (Vice Secretary

2nd Appellant

and

Stephen Kiarii

1st Respondent

Teresia Wanjala (Treasurer)

2nd Respondent

Ruling

1. By a notice of motion dated 12th May, 2022 filed on 20th May, 2022, brought under the provisions of Order 42 Rule 6 (1) of the Civil Procedure Rules, Applicants/Appellants seek the following orders for stay of execution of the judgement and/or decree made on 01st July, 2021 pending the hearing and determination of this appeal and costs of this application.

2. The application is supported by the affidavit of Simon Kiambi Ngaruni (1st Appellant /Applicant). It is the Appellants/Applicants‘case that they are aggrieved by the decision of the Court in Meru CMCC NO. 104 OF 2017 between them and the respondents, delivered on 01st July, 2021 and have since lodged this appeal challenging the judgment and decree. It is averred that the appeal has high chances of success and that Applicants/Appellant shall suffer irreparable loss and damages if an order of stay of execution is not granted.

3. Opposing the application, 1st Respondent vide a replying affidavit dated and filed on 21st June, 2022 contend that the Appellants/Applicants have not satisfied the grounds for stay set out under Order 42 Rule 6 and that they seek to stay a negative order which order they argue is incapable of being granted.

4. The application was canvassed by way of written submissions which both parties dutifully filed. Both parties relied on Antoine Ndiaye v African Virtual University[2015] eKLR where the Court reiterated that a party seeking an order of stay pending appeal must not only be met the conditions set out under order 42 Rule 6 of the Civil Procedure Rules but that proof of substantial loss occurring to the applicant is the cornerstone of the jurisdiction of the High Court in granting stay of execution. On the question of court balancing the rights of the parties to an application for stay pending appeal, Respondents relied on Absalom Dova v Tarbo Transporters [2013] eKLR.

5. I have considered the application in the light of the grounds thereof, affidavits on record and submissions together with case law cited by counsel and the main issue for determination is whether the Appellant/Applicants have demonstrated that the orders of stay of execution pending appeal are merited.

6. In RWW v EKW [2019] eKLR, the court considered the purpose of a stay of execution order pending appeal, in the following words:“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.”

7. In the instant case, the court made an order dismissing the Appellant/Applicants case with costs. In the case of Western College Farts and Applied Sciences vs. Oranga & Others [1976] KLR 63, the Court of Appeal whilst considering whether an order of stay can be granted in respect of a negative order and which I fully adopt stated inter alia as follows:“But what is there to be executed under the judgment, the subject of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs…..”

8. This position was reiterated by the same court In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR, where it held as follows:“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR 63 at page 66 paragraph C).”

9. Adopting the same reasoning, I find that Appellants/Applicants seek to stay a negative order which is one that is incapable of execution, and thus, incapable of being stayed. On costs, there is no evidence that a decree and certificate of costs have been drawn and therefore an application for stay of payment of costs would at this stage be premature. On the other hand, it has not been demonstrated that the Respondents are incapable of refunding the costs of the suit in the event the appeal succeeds.

10. It is trite that substantial loss is the cornerstone of an application for stay of execution pending appeal. (See James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR).

11. From the foregoing analysis, I find that Appellants/Applicants have not demonstrated that they stand to suffer any loss, substantial or otherwise if the order of stay of execution pending appeal is not granted.

12. Both written and case law do not favour the grant of an order staying a negative order. The notice of motion dated 12th May, 2022 filed on 20th May, 2022 is for the foregoing reasons dismissed with costs to the Respondents.

DATED IN MERU THIS 06TH DAY OF OCTOBER 2022T.W. CHEREREJUDGEAppearancesCourt - Morris KinotiFor Appellant/Applicant - Mr. Kiogora for Kiogora Mugambi & Co AdvocatesFor Respondents - Mr. Muthomi Njeru for Kiautha Arithi & Co. Advocates